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390 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020001503.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 | [
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391 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a03646.txt | 01a03646.txt | TXT | text/plain | 7,700 | Wallace Cobb v. Department of the Navy 01A03646 July 25, 2000 . Wallace Cobb, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency. | July 25, 2000 | Appeal Number: 01A03646
Case Facts:
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 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)), for untimely EEO Counselor contact.<1>
The record discloses that in April 1999, complainant contacted the EEO
office regarding his suspension for unauthorized leave. Complainant
did not pursue formal EEO counseling at that time, but did sign a
statement acknowledging his understanding of the 45 day time limit for
EEO counselor contact. Subsequently, complainant was again charged with
another unauthorized absence which resulted in a third suspension and his
eventual removal, which was effective on August 6, 1999. Thereafter,
complainant filed an appeal with the Merit System Protection Board
(MSPB), which was dismissed as untimely on October 14, 1999.
Complainant then filed an EEO complaint with the agency, with a postmark
date of January 8, 2000.<2> Therein he alleged that his suspensions
and removal for unauthorized leave were motivated by discriminatory
animus based on his race and sex. On March 10, 2000, the agency issued
complainant a show cause letter requesting an explanation for his late
EEO Counselor contact. Complainant responded in a letter dated March 21,
2000, which indicated that he had contacted the EEO office in the past,
but that they would not accept his complaint, and felt that the same
thing would happen regarding the instant complaint. He also claimed
that he was never informed of the time limit until receipt of the show
cause letter. Finally, complainant indicated that he was untimely
because his union representative informed him that the union could not
provide him with representation during the EEO process.
On appeal, complainant submits the March 21, 2000 letter as his appeal
statement. The agency again avers that complainant clearly was aware
of the 45 day time limit by virtue of his signed statement, as well as
posters and EEO tapes present in the work place, and that he presented
no compelling reasons for tolling the time limit.
The Commission agrees with the agency that no persuasive arguments and
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact. Instead, the evidence clearly demonstrates
that complainant knew of the time limit, and we find that neither
concern that the EEO office might not accept his complaint, nor the
lack of union representation, are sufficient reasons for untimely EEO
contact.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Wallace Cobb v. Department of the Navy
01A03646
July 25, 2000
.
Wallace Cobb,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03646
Agency No. 00-65886-015
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 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)), for untimely EEO Counselor contact.<1>
The record discloses that in April 1999, complainant contacted the EEO
office regarding his suspension for unauthorized leave. Complainant
did not pursue formal EEO counseling at that time, but did sign a
statement acknowledging his understanding of the 45 day time limit for
EEO counselor contact. Subsequently, complainant was again charged with
another unauthorized absence which resulted in a third suspension and his
eventual removal, which was effective on August 6, 1999. Thereafter,
complainant filed an appeal with the Merit System Protection Board
(MSPB), which was dismissed as untimely on October 14, 1999.
Complainant then filed an EEO complaint with the agency, with a postmark
date of January 8, 2000.<2> Therein he alleged that his suspensions
and removal for unauthorized leave were motivated by discriminatory
animus based on his race and sex. On March 10, 2000, the agency issued
complainant a show cause letter requesting an explanation for his late
EEO Counselor contact. Complainant responded in a letter dated March 21,
2000, which indicated that he had contacted the EEO office in the past,
but that they would not accept his complaint, and felt that the same
thing would happen regarding the instant complaint. He also claimed
that he was never informed of the time limit until receipt of the show
cause letter. Finally, complainant indicated that he was untimely
because his union representative informed him that the union could not
provide him with representation during the EEO process.
On appeal, complainant submits the March 21, 2000 letter as his appeal
statement. The agency again avers that complainant clearly was aware
of the 45 day time limit by virtue of his signed statement, as well as
posters and EEO tapes present in the work place, and that he presented
no compelling reasons for tolling the time limit.
The Commission agrees with the agency that no persuasive arguments and
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact. Instead, the evidence clearly demonstrates
that complainant knew of the time limit, and we find that neither
concern that the EEO office might not accept his complaint, nor the
lack of union representation, are sufficient reasons for untimely EEO
contact. Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.<3>
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 25, 2000
__________________
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.
2According to the record, complainant did not seek EEO counseling prior
to filing his formal complaint, such that the agency used the postmark
date of the complaint as the date of initial EEO counselor contact.
3We also note that complainant's removal claim could be dismissed on the
alternative grounds that it is a collateral attack on the MSPB process,
given that the MSPB had jurisdiction over this matter, and rendered
a determination prior to complainant filing the instant complaint.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998).
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392 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120064208.txt | 0120064208.txt | TXT | text/plain | 8,065 | Sharon L. Cross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency. | May 23, 2006 | Appeal Number: 01200642081
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 23, 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., 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.
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 she was subjected to discrimination
on the bases of sex (female), disability, age, and in reprisal for
prior protected EEO activity [arising under an EEO statute that was
unspecified in the record] when, in correspondence dated January 12,
2006, her request to reassign to the Massachusetts District was denied.
The record discloses that the alleged discriminatory event occurred
on January 12, 2006, but complainant did not initiate contact with
an EEO Counselor until April 3, 2006, which is beyond the forty-five
(45) day limitation period. On appeal, complainant contends that on
February 11, 2006, she mailed a letter to the Office of EEO Director,
Massachusetts District, in North Reading, Massachusetts, which "bears
a USPS Certificate of Mailing" and that the letter was never answered.
Complainant contends that this constitutes timely EEO counselor contact.
In response, the agency asserts that the copy of complainant's appeal
brief which the agency was provided does not include any such certificate
of mailing or any proof of mailing or receipt by the United States Postal
Service. The agency also notes that they do not have an EEO Director or
EEO Office in North Reading, Massachusetts. The agency indicates that an
inquiry was conducted to determine if the February 11, 2006 correspondence
was received by the Massachusetts Postal District. The agency attaches
an affidavit from the EEO Field Operations EEO ADR Specialist, who is
the primary counselor/specialist assigned to the Massachusetts District
domiciled in Worcester, Massachusetts. In her affidavit, the Specialist
declares that the February 11, 2006 correspondence from complainant was
never forwarded to her for processing by the Massachusetts District.
The agency asserts that inquiries were made with the Secretary, Human
Resources, the Labor Relations Department, as well as the individual who
signed the document denying complainant's transfer/reassignment to the
Massachusetts District. The agency found that none of the aforementioned
individuals received complainant's February 11, 2006 correspondence.
The agency asserts that if the correspondence were received, it would
have been forwarded to the EEO ADR Specialist for processing.
We have reviewed the attachment which complainant has provided to the
Commission, which she describes as proof that she mailed a letter to
the Office of EEO Director, Massachusetts District, in North Reading,
Massachusetts on or about February 11, 2006, requesting to file a formal
complaint. First, we note that the copy of the letter which she has
provided is not signed. Second, although it appears that there is an
agency Human Resources Office in North Reading, Massachusetts, complainant
has not shown that at the relevant time, an EEO Office existed in such
location. Third, assuming that the attached "Certificate of Mailing"
does in fact pertain to the letter in question, complainant still has not
provided proof that the letter was ever received by any agency employee
who is reasonably connected to the EEO process.
The Commission finds that 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 dismissing complainant's complaint is affirmed. | Sharon L. Cross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01200642081
Agency No. 4B-018-0073-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 23, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission
finds that complainant's complaint was properly dismissed pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female), disability, age, and in reprisal for
prior protected EEO activity [arising under an EEO statute that was
unspecified in the record] when, in correspondence dated January 12,
2006, her request to reassign to the Massachusetts District was denied.
The record discloses that the alleged discriminatory event occurred
on January 12, 2006, but complainant did not initiate contact with
an EEO Counselor until April 3, 2006, which is beyond the forty-five
(45) day limitation period. On appeal, complainant contends that on
February 11, 2006, she mailed a letter to the Office of EEO Director,
Massachusetts District, in North Reading, Massachusetts, which "bears
a USPS Certificate of Mailing" and that the letter was never answered.
Complainant contends that this constitutes timely EEO counselor contact.
In response, the agency asserts that the copy of complainant's appeal
brief which the agency was provided does not include any such certificate
of mailing or any proof of mailing or receipt by the United States Postal
Service. The agency also notes that they do not have an EEO Director or
EEO Office in North Reading, Massachusetts. The agency indicates that an
inquiry was conducted to determine if the February 11, 2006 correspondence
was received by the Massachusetts Postal District. The agency attaches
an affidavit from the EEO Field Operations EEO ADR Specialist, who is
the primary counselor/specialist assigned to the Massachusetts District
domiciled in Worcester, Massachusetts. In her affidavit, the Specialist
declares that the February 11, 2006 correspondence from complainant was
never forwarded to her for processing by the Massachusetts District.
The agency asserts that inquiries were made with the Secretary, Human
Resources, the Labor Relations Department, as well as the individual who
signed the document denying complainant's transfer/reassignment to the
Massachusetts District. The agency found that none of the aforementioned
individuals received complainant's February 11, 2006 correspondence.
The agency asserts that if the correspondence were received, it would
have been forwarded to the EEO ADR Specialist for processing.
We have reviewed the attachment which complainant has provided to the
Commission, which she describes as proof that she mailed a letter to
the Office of EEO Director, Massachusetts District, in North Reading,
Massachusetts on or about February 11, 2006, requesting to file a formal
complaint. First, we note that the copy of the letter which she has
provided is not signed. Second, although it appears that there is an
agency Human Resources Office in North Reading, Massachusetts, complainant
has not shown that at the relevant time, an EEO Office existed in such
location. Third, assuming that the attached "Certificate of Mailing"
does in fact pertain to the letter in question, complainant still has not
provided proof that the letter was ever received by any agency employee
who is reasonably connected to the EEO process.
The Commission finds that on appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your
time in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 16, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated 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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393 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120171394.txt | 0120171394.txt | TXT | text/plain | 21,632 | Candi R.,1 Complainant, v. Andrew Wheeler, Acting Administrator, Environmental Protection Agency, Agency. | March 8, 2017 | Appeal Number: 0120171394
Background:
At the time of events giving rise to this complaint, Complainant worked as an Associate Regional Counsel, 0905, GS-14, at the Agency's Region 5 Office of Regional Counsel (ORC) in Chicago, Illinois. On August 20, 2015, Complainant filed an EEO complaint alleging age discrimination.
On November 12, 2015, the Region 5 Regional Counsel (RC) sent an email to all ORC attorneys regarding an Associate Deputy Regional Counsel vacancy that contained two attachments (Email 1). The first attachment was the job description for the vacant position. The second attachment was the signed November 10, 2015, affidavit of an ORC Branch Chief (BC) for Complainant's age discrimination complaint. The affidavit included facts pertinent to Complainant's EEO complaint, as well as her personally identifiable information (PII). After several ORC attorneys notified RC that the email attachment contained confidential and private information, an IT Specialist directed all ORC attorneys to delete the email.
On November 12, 2015, Complainant's two union representatives met with RC and the Deputy Regional Counsel regarding Email 1. RC indicated that he had sent a draft of the email and the correct attachments to the Administrative Officer (AO) to distribute on his behalf. AO edited the draft and inadvertently included BC's EEO affidavit, which was saved on her computer. AO stated that she had BC's affidavit saved to her computer because he had asked her to send it to the EEO Investigator investigating Complainant's complaint. According to AO, sending the wrong attachment was "an honest but terrible mistake."
On November 13, 2015, one of Complainant's union representatives (U1) sent an email to the Area Director of the Office of Civil Rights (AD), who is based in Durham, North Carolina, describing the events surrounding Email 1 and asking for advice. On November 18, 2015, AD sent an email to a colleague in the Office of Civil Rights to inform her of Email 1 and included all ORC attorneys on the message (Email 2). The subject line of Email 2 included Complainant's name and the case number of her age discrimination case. The body of Email 2 included U1's November 13, 2015, message, which stated that Email 1 had caused Complainant distress and anxiety. When AD was notified that Email 2 had been distributed to inappropriate recipients, he attempted to recall the message. According to AD, he entered the Region 5 OCR Attorneys group email into the "To:" line of Email 2 to see who had received Email 1 and forgot to remove it before sending the email.
On March 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. On November 12, 2015, RC sent an email to all ORC attorneys that contained confidential information regarding Complainant's prior EEO complaint; and
2. On November 18, 2015, AD sent an email to a colleague and to all ORC attorneys that included confidential information regarding Complainant's prior EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In its final decision, the Agency concluded that Complainant failed to establish a prima facie case of reprisal with respect to Email 1 because there was no causal link between AO sending the email on behalf of RC and Complainant's prior protected activity. The Agency found that Complainant established a prima facie case of reprisal with respect to the sending of Email 2. The Agency found that management articulated legitimate, nondiscriminatory reasons for sending both emails, which were that both emails were sent to due errors by AO and by AD. The final decision concluded that Complainant failed to establish that the legitimate, nondiscriminatory reasons provided by management were a pretext designed to mask retaliatory animus.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was subjected to retaliation and requests that the Agency's final decision be reversed.
In response to Complainant's appeal, the Agency contends that Complainant has not met her burden of proof because the mistakes made in sending Emails 1 and 2 were unintentional and therefore lack retaliatory motive. The Agency requests that its final decision be affirmed.
Legal Analysis:
the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was subjected to discrimination based on reprisal when her confidential EEO information was disclosed to her coworkers on two separate occasions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Associate Regional Counsel, 0905, GS-14, at the Agency's Region 5 Office of Regional Counsel (ORC) in Chicago, Illinois. On August 20, 2015, Complainant filed an EEO complaint alleging age discrimination.
On November 12, 2015, the Region 5 Regional Counsel (RC) sent an email to all ORC attorneys regarding an Associate Deputy Regional Counsel vacancy that contained two attachments (Email 1). The first attachment was the job description for the vacant position. The second attachment was the signed November 10, 2015, affidavit of an ORC Branch Chief (BC) for Complainant's age discrimination complaint. The affidavit included facts pertinent to Complainant's EEO complaint, as well as her personally identifiable information (PII). After several ORC attorneys notified RC that the email attachment contained confidential and private information, an IT Specialist directed all ORC attorneys to delete the email.
On November 12, 2015, Complainant's two union representatives met with RC and the Deputy Regional Counsel regarding Email 1. RC indicated that he had sent a draft of the email and the correct attachments to the Administrative Officer (AO) to distribute on his behalf. AO edited the draft and inadvertently included BC's EEO affidavit, which was saved on her computer. AO stated that she had BC's affidavit saved to her computer because he had asked her to send it to the EEO Investigator investigating Complainant's complaint. According to AO, sending the wrong attachment was "an honest but terrible mistake."
On November 13, 2015, one of Complainant's union representatives (U1) sent an email to the Area Director of the Office of Civil Rights (AD), who is based in Durham, North Carolina, describing the events surrounding Email 1 and asking for advice. On November 18, 2015, AD sent an email to a colleague in the Office of Civil Rights to inform her of Email 1 and included all ORC attorneys on the message (Email 2). The subject line of Email 2 included Complainant's name and the case number of her age discrimination case. The body of Email 2 included U1's November 13, 2015, message, which stated that Email 1 had caused Complainant distress and anxiety. When AD was notified that Email 2 had been distributed to inappropriate recipients, he attempted to recall the message. According to AD, he entered the Region 5 OCR Attorneys group email into the "To:" line of Email 2 to see who had received Email 1 and forgot to remove it before sending the email.
On March 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. On November 12, 2015, RC sent an email to all ORC attorneys that contained confidential information regarding Complainant's prior EEO complaint; and
2. On November 18, 2015, AD sent an email to a colleague and to all ORC attorneys that included confidential information regarding Complainant's prior EEO complaint.
At the | Candi R.,1
Complainant,
v.
Andrew Wheeler,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120171394
Agency No. 2016-0040-R05
DECISION
On March 8, 2017, 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 January 31, 2017, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was subjected to discrimination based on reprisal when her confidential EEO information was disclosed to her coworkers on two separate occasions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Associate Regional Counsel, 0905, GS-14, at the Agency's Region 5 Office of Regional Counsel (ORC) in Chicago, Illinois. On August 20, 2015, Complainant filed an EEO complaint alleging age discrimination.
On November 12, 2015, the Region 5 Regional Counsel (RC) sent an email to all ORC attorneys regarding an Associate Deputy Regional Counsel vacancy that contained two attachments (Email 1). The first attachment was the job description for the vacant position. The second attachment was the signed November 10, 2015, affidavit of an ORC Branch Chief (BC) for Complainant's age discrimination complaint. The affidavit included facts pertinent to Complainant's EEO complaint, as well as her personally identifiable information (PII). After several ORC attorneys notified RC that the email attachment contained confidential and private information, an IT Specialist directed all ORC attorneys to delete the email.
On November 12, 2015, Complainant's two union representatives met with RC and the Deputy Regional Counsel regarding Email 1. RC indicated that he had sent a draft of the email and the correct attachments to the Administrative Officer (AO) to distribute on his behalf. AO edited the draft and inadvertently included BC's EEO affidavit, which was saved on her computer. AO stated that she had BC's affidavit saved to her computer because he had asked her to send it to the EEO Investigator investigating Complainant's complaint. According to AO, sending the wrong attachment was "an honest but terrible mistake."
On November 13, 2015, one of Complainant's union representatives (U1) sent an email to the Area Director of the Office of Civil Rights (AD), who is based in Durham, North Carolina, describing the events surrounding Email 1 and asking for advice. On November 18, 2015, AD sent an email to a colleague in the Office of Civil Rights to inform her of Email 1 and included all ORC attorneys on the message (Email 2). The subject line of Email 2 included Complainant's name and the case number of her age discrimination case. The body of Email 2 included U1's November 13, 2015, message, which stated that Email 1 had caused Complainant distress and anxiety. When AD was notified that Email 2 had been distributed to inappropriate recipients, he attempted to recall the message. According to AD, he entered the Region 5 OCR Attorneys group email into the "To:" line of Email 2 to see who had received Email 1 and forgot to remove it before sending the email.
On March 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. On November 12, 2015, RC sent an email to all ORC attorneys that contained confidential information regarding Complainant's prior EEO complaint; and
2. On November 18, 2015, AD sent an email to a colleague and to all ORC attorneys that included confidential information regarding Complainant's prior EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In its final decision, the Agency concluded that Complainant failed to establish a prima facie case of reprisal with respect to Email 1 because there was no causal link between AO sending the email on behalf of RC and Complainant's prior protected activity. The Agency found that Complainant established a prima facie case of reprisal with respect to the sending of Email 2. The Agency found that management articulated legitimate, nondiscriminatory reasons for sending both emails, which were that both emails were sent to due errors by AO and by AD. The final decision concluded that Complainant failed to establish that the legitimate, nondiscriminatory reasons provided by management were a pretext designed to mask retaliatory animus.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was subjected to retaliation and requests that the Agency's final decision be reversed.
In response to Complainant's appeal, the Agency contends that Complainant has not met her burden of proof because the mistakes made in sending Emails 1 and 2 were unintentional and therefore lack retaliatory motive. The Agency requests that its final decision be affirmed.
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. (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").
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice 915.004, at II.B.
Further, Agencies have a continuing duty to promote the full realization of equal employment opportunity in their policies and practices. 29 C.F.R. § 1614.101. This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to ensure that managers and supervisors perform in such a manner "as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity." Id. § 1614.102(5). "When a supervisor's behavior has a potentially chilling effect on the use of the EEO process -- the ultimate tool that employees have to enforce equal employment opportunity -- the behavior is a per se violation." Ebony M. v. Dep't of Agriculture, EEOC Appeal No. 0120140153 (Nov. 14, 2017); Ivan V. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016).
Given the importance of maintaining "unfettered access to [the] statutory remedial mechanisms" in the anti-retaliation provisions, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). For example, we have held that a supervisor threatening an employee by saying "What goes around, comes around" when discussing an EEO complaint constitutes per se reprisal. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint "as a friend," even if intended innocently, is per se reprisal. Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management specialist told the complainant, "as a friend," that her EEO claim would polarize the office).
Similarly, the Commission has held that disclosure of EEO activity by a supervisor to coworkers constitutes per se reprisal. Complainant v. Dep't of Justice, EEOC Appeal No. 0120132430 (July 9, 2015) (reprisal found where a supervisor broadcasted complainant's EEO activity in the presence of coworkers and management). We have also found reprisal where a human resources (HR) employee inadvertently negatively left a message on a complainant's voicemail regarding the settlement of a prior EEO complaint. Complainant v. Dep't of Justice, EEOC Appeal No. 0720120032 (May 1, 2014) (complainant subjected to retaliation when HR employee and coworker inadvertently left message on complainant's work voicemail berating her and using strong language while discussing settlement of complainant's prior EEO complaint).
In the instant case, AO, RC, and AD stated that Emails 1 and 2 containing Complainant's confidential EEO information were sent to her coworkers as a result of unfortunate errors.2 However, we find that the asserted inadvertent nature of these disclosures of Complainant's EEO activity does not negate the fact that sending these emails to all ORC attorneys is reasonably likely to deter an employee from engaging in EEO activity and therefore constitutes reprisal. We find, therefore, that the Agency subjected Complainant to discrimination based on reprisal when her confidential EEO information was disclosed to her coworkers.
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 final decision finding no discrimination and REMAND the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to undertake the following remedial actions:
1. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice in accordance with the paragraph entitled "Posting Order."
2. Within ninety (90) days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to AO, RD, BC, and AD with a special emphasis on reprisal and improper disclosure of EEO activity.
3. Within sixty (60) days of the date this decision is issued, the Agency shall consider disciplinary action against AO, RD, BC, and AD. The Commission does not consider training to constitute discipline. The Agency shall report its decision to the Compliance Officer. 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. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
4. Within ninety (90) days of the date this decision is issued, the Agency shall undertake a supplemental investigation concerning Complainant's entitlement to compensatory damages and determine the amount of compensatory damages due Complainant in a final decision with appeal rights to the Commission. Within thirty (30) days of the date of the determination of the amount of compensatory damages, the Agency shall pay this amount to Complainant. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
The Agency 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).
POSTING ORDER (G0617)
The Agency is ordered to post at its Chicago, Illinois, Region 5 Office of Regional Counsel and Durham, North Carolina, Office of Civil Rights facilities 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 is issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (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
_9/14/18_________________
Date
2 We note that AO erroneously sending BC's EEO affidavit as an attachment to all ORC attorneys could have been avoided if BC had not shared the affidavit related to Complainant's confidential EEO complaint with AO in the first place. Therefore, pursuant to our finding of reprisal, we will order the Agency to provide training to and consider discipline against BC as a responsible management official.
------------------------------------------------------------
------------------------------------------------------------
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394 | https://www.eeoc.gov/sites/default/files/decisions/2023_04_21/2023000651.pdf | 2023000651.pdf | PDF | application/pdf | 20,008 | Edie R .,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. | September 27, 2022 | Appeal Number: 2023000651
Background:
At the time of events giving rise to this complaint, Complainant worked as a Housekeeper for
Navy Gateway Inns & Suites at the Agency ’s Truman Annex in Key West, Florida.
On July 9, 2022, Complaina nt filed a Formal E EO Complaint on the bases of race (African
American), national origin (Haitian), and color (Black). Complainant’s langua ge is Haitian
Creole, and she required a translator when provided with information in English.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 The record reflects that typically, one of the one of the Hous ekeeping Leads, fluent in Haitian
Creole, translated for Complainant and other Housekeepers during interactions with
Management . Complainant was properly provided with a translator when interviewed by the
EEO Counselor.
The Agency framed Co mplainant’ s claims as follows:
a. On or around July 2015 through November 2021, Complainant was regularly
given additional duties that were rejected by Hispanic and Caucasian
housekeepers,
b. On November 8, 2021, Complainant requested a small raise due to high cost
of living in Key West and was told by the Ass istant General Manager, "We
cannot do anything about your pay, if you don't want to work for $12 an hour,
then you can go home,"3
c. On December 6, 2021, Complainant was called into a meeting with the
Assist ant General Manager and instructed to sign a “ Notice of Proposed
Removal For Cause,”
d. On December 6, 2021, Complainant requested a translator in order to
understand the “ Notice of Proposed Removal For Cause ” and was told by the
Assistant General Manager th at it was not necessary and wrote "Refuse to
Sign" on the form, and,
e. On January 26, 2022, Complainant was terminated.
The Agency dismissed the complaint for untimely EEO counselor contact, pursuant to 29 C.F.R § 1614.107(a)(2).
Legal Analysis:
the Commission’s website.
2 The record reflects that typically, one of the one of the Hous ekeeping Leads, fluent in Haitian
Creole, translated for Complainant and other Housekeepers during interactions with
Management . Complainant was properly provided with a translator when interviewed by the
EEO Counselor.
The Agency framed Co mplainant’ s claims as follows:
a. On or around July 2015 through November 2021, Complainant was regularly
given additional duties that were rejected by Hispanic and Caucasian
housekeepers,
b. On November 8, 2021, Complainant requested a small raise due to high cost
of living in Key West and was told by the Ass istant General Manager, "We
cannot do anything about your pay, if you don't want to work for $12 an hour,
then you can go home,"3
c. On December 6, 2021, Complainant was called into a meeting with the
Assist ant General Manager and instructed to sign a “ Notice of Proposed
Removal For Cause,”
d. On December 6, 2021, Complainant requested a translator in order to
understand the “ Notice of Proposed Removal For Cause ” and was told by the
Assistant General Manager th at it was not necessary and wrote "Refuse to
Sign" on the form, and,
e. On January 26, 2022, Complainant was terminated.
The Agency dismissed the complaint for untimely EEO counselor contact, pursuant to 29 C.F.R § 1614.107(a)(2).
ANALYSIS AND FINDINGS
EEO C 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 t he case of a personnel
action, within forty-five (45) days of the effective date of the action. Complainant’s EEO Contact was Timely
The Commission has consistently held that a complainant satisfies the requirement of Counselor contact by contacting an agency official logically connected with the EEO process, even if that
official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army , EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. HUD , EEOC
Request No . 05980083 (Jul . 30, 1998); Allen v. United States Postal Serv. , EEOC Request No.
05950933 (Jul. 9, 1996).
3 In res ponse, Complainant and appro ximately 8 other Housekeepers walked off the job.
The A gency erroneously identifies Com plainant ’s date of initial EEO contact as March 28, 2022,
when Complainant first emailed an EEO Counselor. Ho wever, we find that Complainant met the
criteria for initiating EEO Contact on December 10, 2021, in an email identified in the record as
“Complainant ’s Rebuttal Letter .” The email responded to the December 6, 2021 “Notice of
Proposed Rem oval” and was sent by Complainant to a Human Resources ( “HR”) Specialist she
and other Haitian Housekeepers had been in regular contact with regarding their return to work.
The email recounts how after their request for an increase in wages was denied on November 8,
2021, “ we [went] to [HR Specialist] to explain our problems and how they treat us ,” and that HR
Specialist “said she will conduct an investigation.” T he email describes the incidents in Claims
(b), (c), and (d) and alludes to Claim ( a), indicating ongoing issu es of alleged unequal treatment
based on race and national origin.4 The email concludes, “We think that we have been subjected
to discrimination …I am [Complainant and I ] ask you to help me please…” There is no
indication that the HR S pecialist clarified that Complainant should contact the EEO office about
discrimina tion allegations, and, as discussed below, the Agency ha s not demonstrated that
Complainant was on notice of the Agency ’s EEO policies.
Based on the December 10, 2021 initial contact, all of the claims in the instant complaint were
timely raised .
The Record Does N ot Support the Agency’ s Rationale for Dismissal
It is the Commission's policy that constructive knowledge of EEO time limits will be imputed to
an employee when an employer has fulf illed its obligations under EEOC regulations for
publicizing the time limits for contacting an EEO Counselor. See Yashuk v. United States Postal
Serv., EEOC Request No. 05890382 (Jun. 2, 1989). The Commission has reversed dismissal s for
untimely EEO contac t where the complainant explained that they were unaware of the EEO 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).
In its decision, the Agency imputed Complainant with constructive knowledge of the time limit based on an EEO course she took on January 21, 2021. In support, the complaint file contains a six-page document listing approximately 100 courses purportedly taken by Complainant.
4 When a complaint is filed on a proposed action and the agency subsequently proceeds with the
action, the action is considered to have merged with the proposal. See Siegel v. Dep ’t of
Veterans Affairs , EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep ’t of the
Treasury , EEOC Reques t No. 05910190 (Feb. 25, 1991). Therefore, Complainant’ s December
10, 2021 initial contact regarding the “ Notice of Proposed Removal ” in Claim (c) is deemed to
have also raised Complainant’s January 26, 2022 t ermination in Claim (e) .
This extensive course list includes: Anti -terrorism Awareness Training, Sexual Assault
Prevention and Response, Counterintel ligence Awareness and Reporting, Fair Labor Standards
Act, Workplace Violence Prevention, Cyber Awareness, Suicide Awareness Training, and EEO
Training. While the Agency decision stated it was a web -based course, accordi ng to this
document, the courses wer e all “Manager Provided.” The record also contains slides from “EEO
for Non -Supervisors,” which informs participants about the forty- five-day time limit. The
Agency does not dispute that all materials were written in English. Given the broad range of
courses purportedly given to Complainant, a Housekeeper, by her Manager, as well as
Complainant’s well- established language limitations, we do not find that the instant record
clearly establishes Complainant’s constructive knowledge.5
In its decision , the Age ncy also maintains that Complainant had actual knowledge of the 45-day
time limit because this information was included in the termination letter itself. However, the
Agency did not provide Complainant with a translation of the letter in her language. We n ote that
the December 6, 2021 “Notice of Proposed Termination,” which Complainant received with a
translator present, did not ref erence Complainant ’s EEO rights.
Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obta ining
sufficient information to support a re asoned determination as to timeliness.” See 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). Based on the specific cir cumstances before us, we do not
find t hat the Agency has met its burden. See also Beckmyer, Cole, Ferrer, Gowen, Lopez,
Navales, Paco, Payongayong, Sanchez, and Tabion v. Dep’t of the Navy, EEOC Appeal Nos.
0120073167, 0120073161, 0120073157, 0120073156, 0120073155, 0120073154, 0120073152, 0120073151, 0120073149, 0120073147, 0120073148 (Sept 26, 2007) (Agency dismissal of complaints, by group of housekeepers with “limited ability to comprehend English as Tagalog is
their first language”, for untimely couns elor contact reversed due to lack of evidence of EEO
posters/constructive knowledge).
Complainant St ates a Claim of Reprisal
The Commission has previously noted that a complainant may delete or add bases of
discrimination during the complaint process wi thout changing the identity of the claim,
citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). The Commission
broadly applies the Sanchez court's decision by giving complainants liberal latitude to clarify the
bases of discrimination in their c harges . Edwards v. Dep't of Def ., EEOC Request No. 05910830
(Dec. 19, 1991) see also , Doria D. v. United States Postal Serv., EEOC Appeal No. 2019005199
(Nov. 15, 2019) (although the complainant did not check the box to identify her covered bases on her formal complaint form, the record reflected that she raised them during the processing of her complaint).
5 The Commission reached the same | Edie R .,1
Complainant,
v.
Carlos Del Toro,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2023000651
Agency No. DON226626200897
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission ( “EEOC ” or
“Commission ”) from the Agency's September 27, 2022 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 Housekeeper for
Navy Gateway Inns & Suites at the Agency ’s Truman Annex in Key West, Florida.
On July 9, 2022, Complaina nt filed a Formal E EO Complaint on the bases of race (African
American), national origin (Haitian), and color (Black). Complainant’s langua ge is Haitian
Creole, and she required a translator when provided with information in English.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 The record reflects that typically, one of the one of the Hous ekeeping Leads, fluent in Haitian
Creole, translated for Complainant and other Housekeepers during interactions with
Management . Complainant was properly provided with a translator when interviewed by the
EEO Counselor.
The Agency framed Co mplainant’ s claims as follows:
a. On or around July 2015 through November 2021, Complainant was regularly
given additional duties that were rejected by Hispanic and Caucasian
housekeepers,
b. On November 8, 2021, Complainant requested a small raise due to high cost
of living in Key West and was told by the Ass istant General Manager, "We
cannot do anything about your pay, if you don't want to work for $12 an hour,
then you can go home,"3
c. On December 6, 2021, Complainant was called into a meeting with the
Assist ant General Manager and instructed to sign a “ Notice of Proposed
Removal For Cause,”
d. On December 6, 2021, Complainant requested a translator in order to
understand the “ Notice of Proposed Removal For Cause ” and was told by the
Assistant General Manager th at it was not necessary and wrote "Refuse to
Sign" on the form, and,
e. On January 26, 2022, Complainant was terminated.
The Agency dismissed the complaint for untimely EEO counselor contact, pursuant to 29 C.F.R § 1614.107(a)(2).
ANALYSIS AND FINDINGS
EEO C 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 t he case of a personnel
action, within forty-five (45) days of the effective date of the action. Complainant’s EEO Contact was Timely
The Commission has consistently held that a complainant satisfies the requirement of Counselor contact by contacting an agency official logically connected with the EEO process, even if that
official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army , EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. HUD , EEOC
Request No . 05980083 (Jul . 30, 1998); Allen v. United States Postal Serv. , EEOC Request No.
05950933 (Jul. 9, 1996).
3 In res ponse, Complainant and appro ximately 8 other Housekeepers walked off the job.
The A gency erroneously identifies Com plainant ’s date of initial EEO contact as March 28, 2022,
when Complainant first emailed an EEO Counselor. Ho wever, we find that Complainant met the
criteria for initiating EEO Contact on December 10, 2021, in an email identified in the record as
“Complainant ’s Rebuttal Letter .” The email responded to the December 6, 2021 “Notice of
Proposed Rem oval” and was sent by Complainant to a Human Resources ( “HR”) Specialist she
and other Haitian Housekeepers had been in regular contact with regarding their return to work.
The email recounts how after their request for an increase in wages was denied on November 8,
2021, “ we [went] to [HR Specialist] to explain our problems and how they treat us ,” and that HR
Specialist “said she will conduct an investigation.” T he email describes the incidents in Claims
(b), (c), and (d) and alludes to Claim ( a), indicating ongoing issu es of alleged unequal treatment
based on race and national origin.4 The email concludes, “We think that we have been subjected
to discrimination …I am [Complainant and I ] ask you to help me please…” There is no
indication that the HR S pecialist clarified that Complainant should contact the EEO office about
discrimina tion allegations, and, as discussed below, the Agency ha s not demonstrated that
Complainant was on notice of the Agency ’s EEO policies.
Based on the December 10, 2021 initial contact, all of the claims in the instant complaint were
timely raised .
The Record Does N ot Support the Agency’ s Rationale for Dismissal
It is the Commission's policy that constructive knowledge of EEO time limits will be imputed to
an employee when an employer has fulf illed its obligations under EEOC regulations for
publicizing the time limits for contacting an EEO Counselor. See Yashuk v. United States Postal
Serv., EEOC Request No. 05890382 (Jun. 2, 1989). The Commission has reversed dismissal s for
untimely EEO contac t where the complainant explained that they were unaware of the EEO 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).
In its decision, the Agency imputed Complainant with constructive knowledge of the time limit based on an EEO course she took on January 21, 2021. In support, the complaint file contains a six-page document listing approximately 100 courses purportedly taken by Complainant.
4 When a complaint is filed on a proposed action and the agency subsequently proceeds with the
action, the action is considered to have merged with the proposal. See Siegel v. Dep ’t of
Veterans Affairs , EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep ’t of the
Treasury , EEOC Reques t No. 05910190 (Feb. 25, 1991). Therefore, Complainant’ s December
10, 2021 initial contact regarding the “ Notice of Proposed Removal ” in Claim (c) is deemed to
have also raised Complainant’s January 26, 2022 t ermination in Claim (e) .
This extensive course list includes: Anti -terrorism Awareness Training, Sexual Assault
Prevention and Response, Counterintel ligence Awareness and Reporting, Fair Labor Standards
Act, Workplace Violence Prevention, Cyber Awareness, Suicide Awareness Training, and EEO
Training. While the Agency decision stated it was a web -based course, accordi ng to this
document, the courses wer e all “Manager Provided.” The record also contains slides from “EEO
for Non -Supervisors,” which informs participants about the forty- five-day time limit. The
Agency does not dispute that all materials were written in English. Given the broad range of
courses purportedly given to Complainant, a Housekeeper, by her Manager, as well as
Complainant’s well- established language limitations, we do not find that the instant record
clearly establishes Complainant’s constructive knowledge.5
In its decision , the Age ncy also maintains that Complainant had actual knowledge of the 45-day
time limit because this information was included in the termination letter itself. However, the
Agency did not provide Complainant with a translation of the letter in her language. We n ote that
the December 6, 2021 “Notice of Proposed Termination,” which Complainant received with a
translator present, did not ref erence Complainant ’s EEO rights.
Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obta ining
sufficient information to support a re asoned determination as to timeliness.” See 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). Based on the specific cir cumstances before us, we do not
find t hat the Agency has met its burden. See also Beckmyer, Cole, Ferrer, Gowen, Lopez,
Navales, Paco, Payongayong, Sanchez, and Tabion v. Dep’t of the Navy, EEOC Appeal Nos.
0120073167, 0120073161, 0120073157, 0120073156, 0120073155, 0120073154, 0120073152, 0120073151, 0120073149, 0120073147, 0120073148 (Sept 26, 2007) (Agency dismissal of complaints, by group of housekeepers with “limited ability to comprehend English as Tagalog is
their first language”, for untimely couns elor contact reversed due to lack of evidence of EEO
posters/constructive knowledge).
Complainant St ates a Claim of Reprisal
The Commission has previously noted that a complainant may delete or add bases of
discrimination during the complaint process wi thout changing the identity of the claim,
citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). The Commission
broadly applies the Sanchez court's decision by giving complainants liberal latitude to clarify the
bases of discrimination in their c harges . Edwards v. Dep't of Def ., EEOC Request No. 05910830
(Dec. 19, 1991) see also , Doria D. v. United States Postal Serv., EEOC Appeal No. 2019005199
(Nov. 15, 2019) (although the complainant did not check the box to identify her covered bases on her formal complaint form, the record reflected that she raised them during the processing of her complaint).
5 The Commission reached the same conclusion in a complaint filed by Complainant’s coworker .
Clarine L. v. Dep’t of the Navy , EEOC Appeal No. 2023000392 (Jan. 31, 2023).
Complainant ’s Formal EEO Complaint clarifies that she also alleges that her termination was
motivated by reprisal for eng aging in protected E EO activity (opposition to alleged
discriminatory practices). Spe cifically , Complainant states that on November 10, 2021, two days
after she was sent home, she called HR a nd complained that she and other Housekeepers of
Haitian descent were treated poorl y because of their race and nationality. The Formal EEO
Complaint further states that the Agency “ retaliated against me for complaining about the way
that Haitian employees are treated by firing me .”
Although it is not expressly discuss ed in the initial interview notes , we find that Complainant
notified the EEO Counselor that she engaged in EEO activity , within the context of her other
allegations of discrimination. In addition to Complainant ’s statements in the above -referenced
December 10, 20 21 email, Co mplainant’s March 28, 2022 email states: “I went to HR to find out
why I am treated differently from the Spanish workers ” and the December 10, 2021 email states
that “we [went] to HR to explain our problems and how they treat us” after their request for an
increase in wages was denied on November 8, 2021.” Therefore, the Agency is instructed to include reprisal a s a basis of discrimination when it
resumes processing Complainant’s complaint.
CONCLUSION
The Agency’s decisio n dismissing the complaint is RE VERSED and the matter is REMANDED
for further processing in accordance with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complain ant 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 o ne hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
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 forma t
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting document ation 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 w ith the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action f or enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated . See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the O ffice of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERAT ION (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 err oneous interpretation 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 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 s ubmit 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 reconsiderati on, 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 agen cy’s request for re consideration 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 ot her party,
unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -d
ay time period will result in dismissal of the party’s request for
reconsideration as untime ly, unless extenuat ing 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 deadl ine only in very li mited 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 ci vil 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, i dentifying that per son
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 w ork. 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
cour t 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 15, 2023
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"EEO Counselor. See Yashuk v. United States Postal Serv., EEOC Request No. 05890382 (Jun. 2, 1989)",
"Siegel v. Dep ’t of Veterans Affairs , EEOC Request No. 059... | [
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395 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020004260.pdf | 2020004260.pdf | PDF | application/pdf | 19,499 | King W .,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Indian Health Service), Agency. | May 7, 2020 | Appeal Number: 2020004260
Background:
During the period at issue, Complainant worked for the Agency as a Supervisory Equipment
Specialist in Gallup, New Mexico. On September 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race ( /Zuni/ Native American) and sex (male) . By letter dated
October 23, 2018, the Agency accepted the formal complaint for investigation and determined that
it was comprised of the following claims:
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 2020004260
1. On March 7, 2018, a female coworker [C1], hit Complainant hard on his upper
right shoulder, and stated “[I really want to beat you up]”2 and then she walked
away. Complainant states it startle[d] him when he got hi t by
[C1]. …Complainant states [C1] is a Navajo female who is supervised by [two named management officials] and both are Navajo.
2. In May 2018, due to management’s lack of response to the incident that took
place on March 7, 2018…and Complainant experiencing months of humiliation, fear, anger, and constant anxiety, Complainant retired from his position, Supervisory Equipment Specialist. Complainant states he wanted to retire at the end of 2020 but with the emotional distress, he retired immediately
in May 2018.
Upon completion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (A J).
On April 16, 2020, the Agency filed a Motion to Dismiss. The Agency argued that Complainant’s complaint should be dismissed for failure to state a claim. The Agency reasoned that Complainant was not an aggrieved employee. The Agency also asserts that Complainant has not alleged that he
was physically harmed by the incident. The Agency also found that it took corrective action when
it issued C1 a letter of reprimand. The Agency, in the alternative , argued, in its Motion to Dismiss, that Complainant’s complaint
should be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant
contacted an EEO Counselor on September 5, 2018, 125 days after his retirement. The Agency
asserted that there is no evidence that Complainant contacted an EEO Counselor prior to
September 5, 2018. On April 30, 2020, Complainant filed a Response to the Agency’s Motion to Dismiss. Complainant assert ed that the record does not reflect that he initiated EEO contact on September
5, 2018. Complainant assert ed that the record contains an intake report signed by an EEO
Counselor on September 5, 2018. However, Complainant asserts that the Intake Report does not
set forth that he initiated EEO contact on September 5, 2018. Complainant argued that the Notice of Final Interview and Right to File Formal indicates that he initiated EEO contact on March 8, 2018. Complainant further stated that the record (formal complaint) reflects that he contacted the
EEO Counselor again on May 1, 2018 (which was the date he submitted his email to management regarding his retirement) .
2 While the Agency in its October 23, 2018 acceptance letter frames this claim as C1 stating
to Complainant , “I really wanted to do this to you ,” Complainant, in his affidavit asserts
that C1 stated , “I really want to beat you up.” ROI at 32.
3 2020004260
On May 6, 2020, the Agency filed a Reply to Complainant’s Response to the Agency’s Motion to
Dismiss. The Agency asserted that Complainant did not address its dismissal for failure to state a
claim , and that, therefore, Complainant conceded he was not a ggrieved by the Agency. The
Agency asserts that the Final Interview letter which listed March 8, 2018 as Complainant’s initial EEO contact date was incorrect. The Agency asserts that Complainant has not submitted an
affidavit that he contacted the EEO Counselor on March 8 or May 1, 2018. On May 7, 2020, the AJ granted the Agency’s Motion to Dismiss and adopted the reasons set fort h
in the Agency’s Motion and Reply without further analysis. The record does not reflect that the Agency issued a final action. Because the Agency did not
issue a final action, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. §
1614.109(i). Complainant filed the instant appeal. Complainant reiterates the timeframe set forth in his response to the Agency’s Motion to Dismiss. In response to Complainant’s appeal, the Agency reiterates
that the formal complaint should be dismissed for failure to state a claim and untimely EEO
Counselor contact.
Legal Analysis:
the Commission’s website.
2 2020004260
1. On March 7, 2018, a female coworker [C1], hit Complainant hard on his upper
right shoulder, and stated “[I really want to beat you up]”2 and then she walked
away. Complainant states it startle[d] him when he got hi t by
[C1]. …Complainant states [C1] is a Navajo female who is supervised by [two named management officials] and both are Navajo.
2. In May 2018, due to management’s lack of response to the incident that took
place on March 7, 2018…and Complainant experiencing months of humiliation, fear, anger, and constant anxiety, Complainant retired from his position, Supervisory Equipment Specialist. Complainant states he wanted to retire at the end of 2020 but with the emotional distress, he retired immediately
in May 2018.
Upon completion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (A J).
On April 16, 2020, the Agency filed a Motion to Dismiss. The Agency argued that Complainant’s complaint should be dismissed for failure to state a claim. The Agency reasoned that Complainant was not an aggrieved employee. The Agency also asserts that Complainant has not alleged that he
was physically harmed by the incident. The Agency also found that it took corrective action when
it issued C1 a letter of reprimand. The Agency, in the alternative , argued, in its Motion to Dismiss, that Complainant’s complaint
should be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant
contacted an EEO Counselor on September 5, 2018, 125 days after his retirement. The Agency
asserted that there is no evidence that Complainant contacted an EEO Counselor prior to
September 5, 2018. On April 30, 2020, Complainant filed a Response to the Agency’s Motion to Dismiss. Complainant assert ed that the record does not reflect that he initiated EEO contact on September
5, 2018. Complainant assert ed that the record contains an intake report signed by an EEO
Counselor on September 5, 2018. However, Complainant asserts that the Intake Report does not
set forth that he initiated EEO contact on September 5, 2018. Complainant argued that the Notice of Final Interview and Right to File Formal indicates that he initiated EEO contact on March 8, 2018. Complainant further stated that the record (formal complaint) reflects that he contacted the
EEO Counselor again on May 1, 2018 (which was the date he submitted his email to management regarding his retirement) .
2 While the Agency in its October 23, 2018 acceptance letter frames this claim as C1 stating
to Complainant , “I really wanted to do this to you ,” Complainant, in his affidavit asserts
that C1 stated , “I really want to beat you up.” ROI at 32.
3 2020004260
On May 6, 2020, the Agency filed a Reply to Complainant’s Response to the Agency’s Motion to
Dismiss. The Agency asserted that Complainant did not address its dismissal for failure to state a
claim , and that, therefore, Complainant conceded he was not a ggrieved by the Agency. The
Agency asserts that the Final Interview letter which listed March 8, 2018 as Complainant’s initial EEO contact date was incorrect. The Agency asserts that Complainant has not submitted an
affidavit that he contacted the EEO Counselor on March 8 or May 1, 2018. On May 7, 2020, the AJ granted the Agency’s Motion to Dismiss and adopted the reasons set fort h
in the Agency’s Motion and Reply without further analysis. The record does not reflect that the Agency issued a final action. Because the Agency did not
issue a final action, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. §
1614.109(i). Complainant filed the instant appeal. Complainant reiterates the timeframe set forth in his response to the Agency’s Motion to Dismiss. In response to Complainant’s appeal, the Agency reiterates
that the formal complaint should be dismissed for failure to state a claim and untimely EEO
Counselor contact.
ANALYSIS AND FINDINGS
Dismissal for Failure to State a Claim
The AJ improperly dismissed the formal complaint for failure to state claim. In Harris v. Forklift
Systems, Inc ., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav.
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 a complainant's employment. The Court expla ined 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.
In its Reply to Complainant’s Response to the Agency’s Motion to Dismiss and in its brief in
opposition to Complainant’s appeal, the Agency asserts that Complainant has conceded that he
was not aggrieved by the Agency’s actions. W e disagree. Complainant has reiterated throughout
the record that he was subjected to harassment based on his protected classes when he was physically assaulted by C1, management did not take proper corrective action,
3 and he had to retire
early due to fear and anxiety from the incident with C1 and the Agency’s refusal to take proper corrective action. While Complainant asserted, he was not “forced” to retire, he did set forth, in his affidavit, that “[he] was dep ressed, unhappy and fearful . [He] didn’t know if [he] would get
beat up again.” Report of Investigation (ROI) at 36.
3 Complainant asserts that C1 received a lett er of reprimand but that due to the nature of
the incident, she should have been suspended or terminated.
4 2020004260
In an exit interview dated May 3, 2018, Complainant stated that his reason for leaving was
“management failed to protect me as a victim of workplace violence” . ROI at 98. Complainant,
in his formal complaint, stated that due to the emotional distress of management’s action s related
to the incident with C1 , he had to retire sooner than planned. ROI at 13. Finally, according to the
EEO Intake Report, Complainant alleged that he was not planning on retiring for two more years but that the incident with C1 caused him stress and he felt sick everyday after the incident with C1. ROI at 17. When viewing the alleged incidents collectively , we find that Complainant has set forth an
actionable claim of discriminatory harassment.
Dismissal for Untimely EEO Counselor Contact
The AJ also improperly dismissed Complainant’s complaint for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty -five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty -five (45) days of the effective date of the action. 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.
Complainant asserts that the record reflects that he initiated EEO contact on March 8, 2018, one day after the alleged physical assault from C1. In addition, Complainant alleges that the formal complaint reflects that he then contacted the EEO Counselor again on May 1, 2018,
4 the day he
emailed management regarding his retirement.5
The Agency argues that the record reflects that Complainant initiated EEO contact on September 5, 2018, beyond the applicable time period. W e disagree. The Agency asserts that the Initial Intake
Report (Report) reflects that Complainant initiated EEO contact on September 5, 2018. However ,
the Report actually reflects that the EEO Counselor signed the Report on September 5, 2018. The
Report does not specifically indicate the date Complainant initiated EEO contact. While the Agency asserts that the record is devoid of evidence that Complainant initiated EEO contact prior to September 5, 2018, we disagree.
4 On his formal complaint, Complainant lists May 1, 2018, as the initial EEO contact date.
ROI at 12.
5 The record contains an email dated May 1, 2018, from Complainant to a management
official . Therein, Complainant stated he would be retiring. ROI at 97. The record reflects
that the effective date of Complainant’s retirement was May 3, 2018. ROI at 96.
5 2020004260
As Complainant asserts, the Notice of Final Interview provides, in pertinent part, that
“[Complainant] initially contacted the EEO Office and EEO Counselor on March 8, 2018…” ROI at 18. While the Agency asserts that this date in the Notice is an error, the Agency has failed to establish this assertion.
The Agency argues that Complainant has not provided an affidavit or other evidence that he
contacted an EEO Counselor prior to September 5, 2018. However, we determine that the Agency
is incor rectly placing the burden regarding the issue of timeliness on Complainant. 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.” Se e Guy v. Dep't of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense , EEOC
Requ est No 05920506 (Aug. 25, 1992) . In addition, in Ericson v. Dep't of the Army , EEOC
Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense ,
EEOC Request No. 05910837 (Jan. 31, 1992).
The Agency has not met this burden. T he Agency has not provided sufficient documentation (such
as an affidavit from the EEO Counselor or other documentation indicating that a review of Agen cy
records reflect that Complainant did not contact the EEO Office prior to September 5, 2018) that
Complainant did not contact an EEO Counselor prior to September 5, 2018. We REVERSE the AJ’s decision dismissing the formal complaint and REMAND t his matter for
a hearing in accordance with the ORDER below.
ORDER
Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed
request for a hearing, a copy of this appellate decision, and the complaint file to the Hearings Unit
of the appropriate EEOC Field Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administr ative Judge shall issue a decision in accordance with
29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital fo rmat 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.
6 2020004260
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commiss ion’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement an y 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. | King W .,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 2020004260
Hearing No. 540-2019-00160X
Agency No. HHS- IHS-0305-2018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the May 7, 2020 EEOC Administrative Judge’s decision, dismissing his complaint of unlawful employment discrimination in violation of Title VII.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Supervisory Equipment
Specialist in Gallup, New Mexico. On September 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race ( /Zuni/ Native American) and sex (male) . By letter dated
October 23, 2018, the Agency accepted the formal complaint for investigation and determined that
it was comprised of the following claims:
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 2020004260
1. On March 7, 2018, a female coworker [C1], hit Complainant hard on his upper
right shoulder, and stated “[I really want to beat you up]”2 and then she walked
away. Complainant states it startle[d] him when he got hi t by
[C1]. …Complainant states [C1] is a Navajo female who is supervised by [two named management officials] and both are Navajo.
2. In May 2018, due to management’s lack of response to the incident that took
place on March 7, 2018…and Complainant experiencing months of humiliation, fear, anger, and constant anxiety, Complainant retired from his position, Supervisory Equipment Specialist. Complainant states he wanted to retire at the end of 2020 but with the emotional distress, he retired immediately
in May 2018.
Upon completion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (A J).
On April 16, 2020, the Agency filed a Motion to Dismiss. The Agency argued that Complainant’s complaint should be dismissed for failure to state a claim. The Agency reasoned that Complainant was not an aggrieved employee. The Agency also asserts that Complainant has not alleged that he
was physically harmed by the incident. The Agency also found that it took corrective action when
it issued C1 a letter of reprimand. The Agency, in the alternative , argued, in its Motion to Dismiss, that Complainant’s complaint
should be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant
contacted an EEO Counselor on September 5, 2018, 125 days after his retirement. The Agency
asserted that there is no evidence that Complainant contacted an EEO Counselor prior to
September 5, 2018. On April 30, 2020, Complainant filed a Response to the Agency’s Motion to Dismiss. Complainant assert ed that the record does not reflect that he initiated EEO contact on September
5, 2018. Complainant assert ed that the record contains an intake report signed by an EEO
Counselor on September 5, 2018. However, Complainant asserts that the Intake Report does not
set forth that he initiated EEO contact on September 5, 2018. Complainant argued that the Notice of Final Interview and Right to File Formal indicates that he initiated EEO contact on March 8, 2018. Complainant further stated that the record (formal complaint) reflects that he contacted the
EEO Counselor again on May 1, 2018 (which was the date he submitted his email to management regarding his retirement) .
2 While the Agency in its October 23, 2018 acceptance letter frames this claim as C1 stating
to Complainant , “I really wanted to do this to you ,” Complainant, in his affidavit asserts
that C1 stated , “I really want to beat you up.” ROI at 32.
3 2020004260
On May 6, 2020, the Agency filed a Reply to Complainant’s Response to the Agency’s Motion to
Dismiss. The Agency asserted that Complainant did not address its dismissal for failure to state a
claim , and that, therefore, Complainant conceded he was not a ggrieved by the Agency. The
Agency asserts that the Final Interview letter which listed March 8, 2018 as Complainant’s initial EEO contact date was incorrect. The Agency asserts that Complainant has not submitted an
affidavit that he contacted the EEO Counselor on March 8 or May 1, 2018. On May 7, 2020, the AJ granted the Agency’s Motion to Dismiss and adopted the reasons set fort h
in the Agency’s Motion and Reply without further analysis. The record does not reflect that the Agency issued a final action. Because the Agency did not
issue a final action, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. §
1614.109(i). Complainant filed the instant appeal. Complainant reiterates the timeframe set forth in his response to the Agency’s Motion to Dismiss. In response to Complainant’s appeal, the Agency reiterates
that the formal complaint should be dismissed for failure to state a claim and untimely EEO
Counselor contact.
ANALYSIS AND FINDINGS
Dismissal for Failure to State a Claim
The AJ improperly dismissed the formal complaint for failure to state claim. In Harris v. Forklift
Systems, Inc ., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav.
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 a complainant's employment. The Court expla ined 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.
In its Reply to Complainant’s Response to the Agency’s Motion to Dismiss and in its brief in
opposition to Complainant’s appeal, the Agency asserts that Complainant has conceded that he
was not aggrieved by the Agency’s actions. W e disagree. Complainant has reiterated throughout
the record that he was subjected to harassment based on his protected classes when he was physically assaulted by C1, management did not take proper corrective action,
3 and he had to retire
early due to fear and anxiety from the incident with C1 and the Agency’s refusal to take proper corrective action. While Complainant asserted, he was not “forced” to retire, he did set forth, in his affidavit, that “[he] was dep ressed, unhappy and fearful . [He] didn’t know if [he] would get
beat up again.” Report of Investigation (ROI) at 36.
3 Complainant asserts that C1 received a lett er of reprimand but that due to the nature of
the incident, she should have been suspended or terminated.
4 2020004260
In an exit interview dated May 3, 2018, Complainant stated that his reason for leaving was
“management failed to protect me as a victim of workplace violence” . ROI at 98. Complainant,
in his formal complaint, stated that due to the emotional distress of management’s action s related
to the incident with C1 , he had to retire sooner than planned. ROI at 13. Finally, according to the
EEO Intake Report, Complainant alleged that he was not planning on retiring for two more years but that the incident with C1 caused him stress and he felt sick everyday after the incident with C1. ROI at 17. When viewing the alleged incidents collectively , we find that Complainant has set forth an
actionable claim of discriminatory harassment.
Dismissal for Untimely EEO Counselor Contact
The AJ also improperly dismissed Complainant’s complaint for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty -five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty -five (45) days of the effective date of the action. 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.
Complainant asserts that the record reflects that he initiated EEO contact on March 8, 2018, one day after the alleged physical assault from C1. In addition, Complainant alleges that the formal complaint reflects that he then contacted the EEO Counselor again on May 1, 2018,
4 the day he
emailed management regarding his retirement.5
The Agency argues that the record reflects that Complainant initiated EEO contact on September 5, 2018, beyond the applicable time period. W e disagree. The Agency asserts that the Initial Intake
Report (Report) reflects that Complainant initiated EEO contact on September 5, 2018. However ,
the Report actually reflects that the EEO Counselor signed the Report on September 5, 2018. The
Report does not specifically indicate the date Complainant initiated EEO contact. While the Agency asserts that the record is devoid of evidence that Complainant initiated EEO contact prior to September 5, 2018, we disagree.
4 On his formal complaint, Complainant lists May 1, 2018, as the initial EEO contact date.
ROI at 12.
5 The record contains an email dated May 1, 2018, from Complainant to a management
official . Therein, Complainant stated he would be retiring. ROI at 97. The record reflects
that the effective date of Complainant’s retirement was May 3, 2018. ROI at 96.
5 2020004260
As Complainant asserts, the Notice of Final Interview provides, in pertinent part, that
“[Complainant] initially contacted the EEO Office and EEO Counselor on March 8, 2018…” ROI at 18. While the Agency asserts that this date in the Notice is an error, the Agency has failed to establish this assertion.
The Agency argues that Complainant has not provided an affidavit or other evidence that he
contacted an EEO Counselor prior to September 5, 2018. However, we determine that the Agency
is incor rectly placing the burden regarding the issue of timeliness on Complainant. 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.” Se e Guy v. Dep't of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense , EEOC
Requ est No 05920506 (Aug. 25, 1992) . In addition, in Ericson v. Dep't of the Army , EEOC
Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense ,
EEOC Request No. 05910837 (Jan. 31, 1992).
The Agency has not met this burden. T he Agency has not provided sufficient documentation (such
as an affidavit from the EEO Counselor or other documentation indicating that a review of Agen cy
records reflect that Complainant did not contact the EEO Office prior to September 5, 2018) that
Complainant did not contact an EEO Counselor prior to September 5, 2018. We REVERSE the AJ’s decision dismissing the formal complaint and REMAND t his matter for
a hearing in accordance with the ORDER below.
ORDER
Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed
request for a hearing, a copy of this appellate decision, and the complaint file to the Hearings Unit
of the appropriate EEOC Field Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administr ative Judge shall issue a decision in accordance with
29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital fo rmat 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.
6 2020004260
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commiss ion’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement an y of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for recon sideration . 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 fo r 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.
7 2020004260
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 (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) cale ndar 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.
8 2020004260
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 8, 2020
Date | [
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"Ericson v. Dep't of the Army , EEOC Request No. 05920623 (Jan. 14, 1993)",
"Gens v. Dep't of Defense , EEOC Request No. 05910837 (Jan. 31, 1992)",
"510 U.S. 17",
... | [
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396 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020004260.pdf | 2020004260.pdf | PDF | application/pdf | 19,499 | King W .,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Indian Health Service), Agency. | May 7, 2020 | Appeal Number: 2020004260
Background:
During the period at issue, Complainant worked for the Agency as a Supervisory Equipment
Specialist in Gallup, New Mexico. On September 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race ( /Zuni/ Native American) and sex (male) . By letter dated
October 23, 2018, the Agency accepted the formal complaint for investigation and determined that
it was comprised of the following claims:
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 2020004260
1. On March 7, 2018, a female coworker [C1], hit Complainant hard on his upper
right shoulder, and stated “[I really want to beat you up]”2 and then she walked
away. Complainant states it startle[d] him when he got hi t by
[C1]. …Complainant states [C1] is a Navajo female who is supervised by [two named management officials] and both are Navajo.
2. In May 2018, due to management’s lack of response to the incident that took
place on March 7, 2018…and Complainant experiencing months of humiliation, fear, anger, and constant anxiety, Complainant retired from his position, Supervisory Equipment Specialist. Complainant states he wanted to retire at the end of 2020 but with the emotional distress, he retired immediately
in May 2018.
Upon completion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (A J).
On April 16, 2020, the Agency filed a Motion to Dismiss. The Agency argued that Complainant’s complaint should be dismissed for failure to state a claim. The Agency reasoned that Complainant was not an aggrieved employee. The Agency also asserts that Complainant has not alleged that he
was physically harmed by the incident. The Agency also found that it took corrective action when
it issued C1 a letter of reprimand. The Agency, in the alternative , argued, in its Motion to Dismiss, that Complainant’s complaint
should be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant
contacted an EEO Counselor on September 5, 2018, 125 days after his retirement. The Agency
asserted that there is no evidence that Complainant contacted an EEO Counselor prior to
September 5, 2018. On April 30, 2020, Complainant filed a Response to the Agency’s Motion to Dismiss. Complainant assert ed that the record does not reflect that he initiated EEO contact on September
5, 2018. Complainant assert ed that the record contains an intake report signed by an EEO
Counselor on September 5, 2018. However, Complainant asserts that the Intake Report does not
set forth that he initiated EEO contact on September 5, 2018. Complainant argued that the Notice of Final Interview and Right to File Formal indicates that he initiated EEO contact on March 8, 2018. Complainant further stated that the record (formal complaint) reflects that he contacted the
EEO Counselor again on May 1, 2018 (which was the date he submitted his email to management regarding his retirement) .
2 While the Agency in its October 23, 2018 acceptance letter frames this claim as C1 stating
to Complainant , “I really wanted to do this to you ,” Complainant, in his affidavit asserts
that C1 stated , “I really want to beat you up.” ROI at 32.
3 2020004260
On May 6, 2020, the Agency filed a Reply to Complainant’s Response to the Agency’s Motion to
Dismiss. The Agency asserted that Complainant did not address its dismissal for failure to state a
claim , and that, therefore, Complainant conceded he was not a ggrieved by the Agency. The
Agency asserts that the Final Interview letter which listed March 8, 2018 as Complainant’s initial EEO contact date was incorrect. The Agency asserts that Complainant has not submitted an
affidavit that he contacted the EEO Counselor on March 8 or May 1, 2018. On May 7, 2020, the AJ granted the Agency’s Motion to Dismiss and adopted the reasons set fort h
in the Agency’s Motion and Reply without further analysis. The record does not reflect that the Agency issued a final action. Because the Agency did not
issue a final action, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. §
1614.109(i). Complainant filed the instant appeal. Complainant reiterates the timeframe set forth in his response to the Agency’s Motion to Dismiss. In response to Complainant’s appeal, the Agency reiterates
that the formal complaint should be dismissed for failure to state a claim and untimely EEO
Counselor contact.
Legal Analysis:
the Commission’s website.
2 2020004260
1. On March 7, 2018, a female coworker [C1], hit Complainant hard on his upper
right shoulder, and stated “[I really want to beat you up]”2 and then she walked
away. Complainant states it startle[d] him when he got hi t by
[C1]. …Complainant states [C1] is a Navajo female who is supervised by [two named management officials] and both are Navajo.
2. In May 2018, due to management’s lack of response to the incident that took
place on March 7, 2018…and Complainant experiencing months of humiliation, fear, anger, and constant anxiety, Complainant retired from his position, Supervisory Equipment Specialist. Complainant states he wanted to retire at the end of 2020 but with the emotional distress, he retired immediately
in May 2018.
Upon completion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (A J).
On April 16, 2020, the Agency filed a Motion to Dismiss. The Agency argued that Complainant’s complaint should be dismissed for failure to state a claim. The Agency reasoned that Complainant was not an aggrieved employee. The Agency also asserts that Complainant has not alleged that he
was physically harmed by the incident. The Agency also found that it took corrective action when
it issued C1 a letter of reprimand. The Agency, in the alternative , argued, in its Motion to Dismiss, that Complainant’s complaint
should be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant
contacted an EEO Counselor on September 5, 2018, 125 days after his retirement. The Agency
asserted that there is no evidence that Complainant contacted an EEO Counselor prior to
September 5, 2018. On April 30, 2020, Complainant filed a Response to the Agency’s Motion to Dismiss. Complainant assert ed that the record does not reflect that he initiated EEO contact on September
5, 2018. Complainant assert ed that the record contains an intake report signed by an EEO
Counselor on September 5, 2018. However, Complainant asserts that the Intake Report does not
set forth that he initiated EEO contact on September 5, 2018. Complainant argued that the Notice of Final Interview and Right to File Formal indicates that he initiated EEO contact on March 8, 2018. Complainant further stated that the record (formal complaint) reflects that he contacted the
EEO Counselor again on May 1, 2018 (which was the date he submitted his email to management regarding his retirement) .
2 While the Agency in its October 23, 2018 acceptance letter frames this claim as C1 stating
to Complainant , “I really wanted to do this to you ,” Complainant, in his affidavit asserts
that C1 stated , “I really want to beat you up.” ROI at 32.
3 2020004260
On May 6, 2020, the Agency filed a Reply to Complainant’s Response to the Agency’s Motion to
Dismiss. The Agency asserted that Complainant did not address its dismissal for failure to state a
claim , and that, therefore, Complainant conceded he was not a ggrieved by the Agency. The
Agency asserts that the Final Interview letter which listed March 8, 2018 as Complainant’s initial EEO contact date was incorrect. The Agency asserts that Complainant has not submitted an
affidavit that he contacted the EEO Counselor on March 8 or May 1, 2018. On May 7, 2020, the AJ granted the Agency’s Motion to Dismiss and adopted the reasons set fort h
in the Agency’s Motion and Reply without further analysis. The record does not reflect that the Agency issued a final action. Because the Agency did not
issue a final action, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. §
1614.109(i). Complainant filed the instant appeal. Complainant reiterates the timeframe set forth in his response to the Agency’s Motion to Dismiss. In response to Complainant’s appeal, the Agency reiterates
that the formal complaint should be dismissed for failure to state a claim and untimely EEO
Counselor contact.
ANALYSIS AND FINDINGS
Dismissal for Failure to State a Claim
The AJ improperly dismissed the formal complaint for failure to state claim. In Harris v. Forklift
Systems, Inc ., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav.
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 a complainant's employment. The Court expla ined 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.
In its Reply to Complainant’s Response to the Agency’s Motion to Dismiss and in its brief in
opposition to Complainant’s appeal, the Agency asserts that Complainant has conceded that he
was not aggrieved by the Agency’s actions. W e disagree. Complainant has reiterated throughout
the record that he was subjected to harassment based on his protected classes when he was physically assaulted by C1, management did not take proper corrective action,
3 and he had to retire
early due to fear and anxiety from the incident with C1 and the Agency’s refusal to take proper corrective action. While Complainant asserted, he was not “forced” to retire, he did set forth, in his affidavit, that “[he] was dep ressed, unhappy and fearful . [He] didn’t know if [he] would get
beat up again.” Report of Investigation (ROI) at 36.
3 Complainant asserts that C1 received a lett er of reprimand but that due to the nature of
the incident, she should have been suspended or terminated.
4 2020004260
In an exit interview dated May 3, 2018, Complainant stated that his reason for leaving was
“management failed to protect me as a victim of workplace violence” . ROI at 98. Complainant,
in his formal complaint, stated that due to the emotional distress of management’s action s related
to the incident with C1 , he had to retire sooner than planned. ROI at 13. Finally, according to the
EEO Intake Report, Complainant alleged that he was not planning on retiring for two more years but that the incident with C1 caused him stress and he felt sick everyday after the incident with C1. ROI at 17. When viewing the alleged incidents collectively , we find that Complainant has set forth an
actionable claim of discriminatory harassment.
Dismissal for Untimely EEO Counselor Contact
The AJ also improperly dismissed Complainant’s complaint for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty -five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty -five (45) days of the effective date of the action. 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.
Complainant asserts that the record reflects that he initiated EEO contact on March 8, 2018, one day after the alleged physical assault from C1. In addition, Complainant alleges that the formal complaint reflects that he then contacted the EEO Counselor again on May 1, 2018,
4 the day he
emailed management regarding his retirement.5
The Agency argues that the record reflects that Complainant initiated EEO contact on September 5, 2018, beyond the applicable time period. W e disagree. The Agency asserts that the Initial Intake
Report (Report) reflects that Complainant initiated EEO contact on September 5, 2018. However ,
the Report actually reflects that the EEO Counselor signed the Report on September 5, 2018. The
Report does not specifically indicate the date Complainant initiated EEO contact. While the Agency asserts that the record is devoid of evidence that Complainant initiated EEO contact prior to September 5, 2018, we disagree.
4 On his formal complaint, Complainant lists May 1, 2018, as the initial EEO contact date.
ROI at 12.
5 The record contains an email dated May 1, 2018, from Complainant to a management
official . Therein, Complainant stated he would be retiring. ROI at 97. The record reflects
that the effective date of Complainant’s retirement was May 3, 2018. ROI at 96.
5 2020004260
As Complainant asserts, the Notice of Final Interview provides, in pertinent part, that
“[Complainant] initially contacted the EEO Office and EEO Counselor on March 8, 2018…” ROI at 18. While the Agency asserts that this date in the Notice is an error, the Agency has failed to establish this assertion.
The Agency argues that Complainant has not provided an affidavit or other evidence that he
contacted an EEO Counselor prior to September 5, 2018. However, we determine that the Agency
is incor rectly placing the burden regarding the issue of timeliness on Complainant. 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.” Se e Guy v. Dep't of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense , EEOC
Requ est No 05920506 (Aug. 25, 1992) . In addition, in Ericson v. Dep't of the Army , EEOC
Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense ,
EEOC Request No. 05910837 (Jan. 31, 1992).
The Agency has not met this burden. T he Agency has not provided sufficient documentation (such
as an affidavit from the EEO Counselor or other documentation indicating that a review of Agen cy
records reflect that Complainant did not contact the EEO Office prior to September 5, 2018) that
Complainant did not contact an EEO Counselor prior to September 5, 2018. We REVERSE the AJ’s decision dismissing the formal complaint and REMAND t his matter for
a hearing in accordance with the ORDER below.
ORDER
Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed
request for a hearing, a copy of this appellate decision, and the complaint file to the Hearings Unit
of the appropriate EEOC Field Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administr ative Judge shall issue a decision in accordance with
29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital fo rmat 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.
6 2020004260
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commiss ion’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement an y 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. | King W .,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 2020004260
Hearing No. 540-2019-00160X
Agency No. HHS- IHS-0305-2018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the May 7, 2020 EEOC Administrative Judge’s decision, dismissing his complaint of unlawful employment discrimination in violation of Title VII.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Supervisory Equipment
Specialist in Gallup, New Mexico. On September 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race ( /Zuni/ Native American) and sex (male) . By letter dated
October 23, 2018, the Agency accepted the formal complaint for investigation and determined that
it was comprised of the following claims:
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 2020004260
1. On March 7, 2018, a female coworker [C1], hit Complainant hard on his upper
right shoulder, and stated “[I really want to beat you up]”2 and then she walked
away. Complainant states it startle[d] him when he got hi t by
[C1]. …Complainant states [C1] is a Navajo female who is supervised by [two named management officials] and both are Navajo.
2. In May 2018, due to management’s lack of response to the incident that took
place on March 7, 2018…and Complainant experiencing months of humiliation, fear, anger, and constant anxiety, Complainant retired from his position, Supervisory Equipment Specialist. Complainant states he wanted to retire at the end of 2020 but with the emotional distress, he retired immediately
in May 2018.
Upon completion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (A J).
On April 16, 2020, the Agency filed a Motion to Dismiss. The Agency argued that Complainant’s complaint should be dismissed for failure to state a claim. The Agency reasoned that Complainant was not an aggrieved employee. The Agency also asserts that Complainant has not alleged that he
was physically harmed by the incident. The Agency also found that it took corrective action when
it issued C1 a letter of reprimand. The Agency, in the alternative , argued, in its Motion to Dismiss, that Complainant’s complaint
should be dismissed for untimely EEO Counselor contact. The Agency reasoned that Complainant
contacted an EEO Counselor on September 5, 2018, 125 days after his retirement. The Agency
asserted that there is no evidence that Complainant contacted an EEO Counselor prior to
September 5, 2018. On April 30, 2020, Complainant filed a Response to the Agency’s Motion to Dismiss. Complainant assert ed that the record does not reflect that he initiated EEO contact on September
5, 2018. Complainant assert ed that the record contains an intake report signed by an EEO
Counselor on September 5, 2018. However, Complainant asserts that the Intake Report does not
set forth that he initiated EEO contact on September 5, 2018. Complainant argued that the Notice of Final Interview and Right to File Formal indicates that he initiated EEO contact on March 8, 2018. Complainant further stated that the record (formal complaint) reflects that he contacted the
EEO Counselor again on May 1, 2018 (which was the date he submitted his email to management regarding his retirement) .
2 While the Agency in its October 23, 2018 acceptance letter frames this claim as C1 stating
to Complainant , “I really wanted to do this to you ,” Complainant, in his affidavit asserts
that C1 stated , “I really want to beat you up.” ROI at 32.
3 2020004260
On May 6, 2020, the Agency filed a Reply to Complainant’s Response to the Agency’s Motion to
Dismiss. The Agency asserted that Complainant did not address its dismissal for failure to state a
claim , and that, therefore, Complainant conceded he was not a ggrieved by the Agency. The
Agency asserts that the Final Interview letter which listed March 8, 2018 as Complainant’s initial EEO contact date was incorrect. The Agency asserts that Complainant has not submitted an
affidavit that he contacted the EEO Counselor on March 8 or May 1, 2018. On May 7, 2020, the AJ granted the Agency’s Motion to Dismiss and adopted the reasons set fort h
in the Agency’s Motion and Reply without further analysis. The record does not reflect that the Agency issued a final action. Because the Agency did not
issue a final action, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. §
1614.109(i). Complainant filed the instant appeal. Complainant reiterates the timeframe set forth in his response to the Agency’s Motion to Dismiss. In response to Complainant’s appeal, the Agency reiterates
that the formal complaint should be dismissed for failure to state a claim and untimely EEO
Counselor contact.
ANALYSIS AND FINDINGS
Dismissal for Failure to State a Claim
The AJ improperly dismissed the formal complaint for failure to state claim. In Harris v. Forklift
Systems, Inc ., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav.
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 a complainant's employment. The Court expla ined 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.
In its Reply to Complainant’s Response to the Agency’s Motion to Dismiss and in its brief in
opposition to Complainant’s appeal, the Agency asserts that Complainant has conceded that he
was not aggrieved by the Agency’s actions. W e disagree. Complainant has reiterated throughout
the record that he was subjected to harassment based on his protected classes when he was physically assaulted by C1, management did not take proper corrective action,
3 and he had to retire
early due to fear and anxiety from the incident with C1 and the Agency’s refusal to take proper corrective action. While Complainant asserted, he was not “forced” to retire, he did set forth, in his affidavit, that “[he] was dep ressed, unhappy and fearful . [He] didn’t know if [he] would get
beat up again.” Report of Investigation (ROI) at 36.
3 Complainant asserts that C1 received a lett er of reprimand but that due to the nature of
the incident, she should have been suspended or terminated.
4 2020004260
In an exit interview dated May 3, 2018, Complainant stated that his reason for leaving was
“management failed to protect me as a victim of workplace violence” . ROI at 98. Complainant,
in his formal complaint, stated that due to the emotional distress of management’s action s related
to the incident with C1 , he had to retire sooner than planned. ROI at 13. Finally, according to the
EEO Intake Report, Complainant alleged that he was not planning on retiring for two more years but that the incident with C1 caused him stress and he felt sick everyday after the incident with C1. ROI at 17. When viewing the alleged incidents collectively , we find that Complainant has set forth an
actionable claim of discriminatory harassment.
Dismissal for Untimely EEO Counselor Contact
The AJ also improperly dismissed Complainant’s complaint for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty -five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty -five (45) days of the effective date of the action. 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.
Complainant asserts that the record reflects that he initiated EEO contact on March 8, 2018, one day after the alleged physical assault from C1. In addition, Complainant alleges that the formal complaint reflects that he then contacted the EEO Counselor again on May 1, 2018,
4 the day he
emailed management regarding his retirement.5
The Agency argues that the record reflects that Complainant initiated EEO contact on September 5, 2018, beyond the applicable time period. W e disagree. The Agency asserts that the Initial Intake
Report (Report) reflects that Complainant initiated EEO contact on September 5, 2018. However ,
the Report actually reflects that the EEO Counselor signed the Report on September 5, 2018. The
Report does not specifically indicate the date Complainant initiated EEO contact. While the Agency asserts that the record is devoid of evidence that Complainant initiated EEO contact prior to September 5, 2018, we disagree.
4 On his formal complaint, Complainant lists May 1, 2018, as the initial EEO contact date.
ROI at 12.
5 The record contains an email dated May 1, 2018, from Complainant to a management
official . Therein, Complainant stated he would be retiring. ROI at 97. The record reflects
that the effective date of Complainant’s retirement was May 3, 2018. ROI at 96.
5 2020004260
As Complainant asserts, the Notice of Final Interview provides, in pertinent part, that
“[Complainant] initially contacted the EEO Office and EEO Counselor on March 8, 2018…” ROI at 18. While the Agency asserts that this date in the Notice is an error, the Agency has failed to establish this assertion.
The Agency argues that Complainant has not provided an affidavit or other evidence that he
contacted an EEO Counselor prior to September 5, 2018. However, we determine that the Agency
is incor rectly placing the burden regarding the issue of timeliness on Complainant. 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.” Se e Guy v. Dep't of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense , EEOC
Requ est No 05920506 (Aug. 25, 1992) . In addition, in Ericson v. Dep't of the Army , EEOC
Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense ,
EEOC Request No. 05910837 (Jan. 31, 1992).
The Agency has not met this burden. T he Agency has not provided sufficient documentation (such
as an affidavit from the EEO Counselor or other documentation indicating that a review of Agen cy
records reflect that Complainant did not contact the EEO Office prior to September 5, 2018) that
Complainant did not contact an EEO Counselor prior to September 5, 2018. We REVERSE the AJ’s decision dismissing the formal complaint and REMAND t his matter for
a hearing in accordance with the ORDER below.
ORDER
Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed
request for a hearing, a copy of this appellate decision, and the complaint file to the Hearings Unit
of the appropriate EEOC Field Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administr ative Judge shall issue a decision in accordance with
29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital fo rmat 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.
6 2020004260
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commiss ion’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement an y of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for recon sideration . 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 fo r 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.
7 2020004260
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 (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) cale ndar 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.
8 2020004260
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 8, 2020
Date | [
"Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)",
"Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)",
"Ericson v. Dep't of the Army , EEOC Request No. 05920623 (Jan. 14, 1993)",
"Gens v. Dep't of Defense , EEOC Request No. 05910837 (Jan. 31, 1992)",
"510 U.S. 17",
... | [
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0.11442349851131439,
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0.054652854800224304,
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0.024755584076046944,
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... |
397 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A30475_r.txt | 01A30475_r.txt | TXT | text/plain | 18,111 | Sammie L. Truelove v. Department of the Army 01A30475 May 13, 2003 . Sammie L. Truelove, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency. | May 13, 2003 | Appeal Number: 01A30475
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 26, 2002, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In his formal EEO complaint, filed on March 25, 2002, complainant
alleged that he was subjected to harassment on the bases of race, color,
disability, and age when:
(a) A Director of Logistics and a Chief, Supply & Services continuously
moved complainant's subordinates out from under his control.
Communicating directly with them without going through complainant, while
complainant was the Chief of Transportation beginning in 1999, until he
left that position temporarily to be a member of the restationing team
on March 5, 2001;
(b) The Director of Logistics did not select complainant to be the
Acting Director of Logistics in his absence even though complainant's
job description stated that he will serve as the acting DOL in the
absence of the Chief of DOL. Two other employees were appointed the
acting position. An agency employee was appointed Acting DOL, August
1999 through June 2000; and the Chief, Supply & Services was appointed
Acting DOL, July 2000 through August 2000;
(c) in November 1999, complainant's subordinate was insubordinate to
complainant. When complainant tried to discipline her, complainant's
supervisor overruled him;
(d) in June 2000, the Director of Logistics recommended that complainant
receive a one-year extension, rather than a two-year extension that
complainant had requested;
(e) complainant did not receive his performance appraisal fo the rating
period of October 1, 1999 through October 31, 2000, thus causing him not
to receive a QSI Award for that rating period. His performance appraisal
was not returned to him for the rating period until September 23, 2001;
(f) in January 2001, the Director of Logistics told complainant that
the Chief, Supply & Services was ostracizing him within the 104th ASG
organization;
(g) when complainant returned from leave, he learned that his personal
belongings had been removed from his office without his knowledge and the
locks changed to his office at the direction of the Director of Logistics
and Chief, Supply & Services, after he had received approval by an
agency Colonel to be assigned to the restationing team on March 5, 2001;
(h) The Director of Logistics accused complainant of being AWOL, in
failing to report to his position on the restationing team on March 5
and 6, 2001;
(i) complainant was treated disparately when he was not reappointed as
the Chief of Plans and Operations at the end of his temporary assignment.
His temporary assignment to the restationing team began on March 5,
2001 and was to end in 120 days; however, it did not end until January
2002; and
(j) complainant was denied a two-year extension by an agency Colonel in
August 2001, even though he had not been in his position for 5 years;
the person replacing him as the Chief of Plans and Operations, [agency
employee], had been in Europe for at least 10 years.
The agency dismissed claims (a) through (h) and (j) on the grounds that
complainant initiated contact with an EEO Counselor in an untimely manner.
Specifically, the agency determined that the last alleged discriminatory
event occurred in August 2001, but that complainant did not initiate EEO
Counselor contact until October 22, 2001, beyond the forty-five (45)
day limitation period.<1> The agency dismissed claim (i) for failure
to state a claim. The agency found that complainant had not established
that he was an aggrieved employee after being returned to his position of
record after his detail ended. Further, the agency determined that claims
(a) through (j) are not part of a continuing violation. Furthermore,
the agency dismissed age as a basis. The agency noted that complainant
was only 37 years of age at the time of the alleged discriminatory
actions which are the subject of this complaint. Therefore, the agency
concluded that complainant's allegation of age discrimination relative
to this case does not meet the criteria contained in 29 C.F.R. § 1614.103.
On appeal, complainant through counsel, asserts that his EEO contact
occurred in April 2001 when he sought the assistance of a Colonel by
taking advantage of his open door policy. Specifically, complainant
asserts that he made several trips to the Hanau EEO office concerning
issues he had with his supervisor but that the Hanau EEO office was not
operating due to the departure of an EEO Officer. Complainant states
that following several unsuccessful trips to the Hanau EEO office, he
went to the Colonel's office in April 2001. Complainant further argues
that his allegations of discrimination should not have been investigated
by an investigator assigned by the Colonel, but instead should have been
referred to the EEO office. Complainant argues that claim (e) is timely
because he did not receive his performance appraisal until September 2001.
Further, complainant contends that his complaint should be evaluated in
terms of a continuing violation.
In response, the agency argues that claims (a) through (h) were untimely
raised with an EEO Counselor because complainant failed to contact the
EEO office concerning these claims until October 2001, well beyond the
forty-five (45) day limitation period. The agency further argues that
complainant chose to first pursue these matters in another forum, and
that he only contacted the EEO office in October 2001, after his concerns
were determined to be unfounded in the chosen forum. With respect to
claim (e), the agency argues that the date of incident occurred as early
as April 2001, rather than September 21, 2001, as stated by complainant.
As to claim (i), the agency determined that a fair reading of this claim
reflects the following circumstances. Complainant was to be returned to
his position of record after his detail ended in January 2002; however,
complainant requested a new detail. The agency submits documents
reflecting the expiration of the detail in January 2002, complainant's
request for an extension of the detail, and the agency's granting of
that request. The agency further determined that the decision to grant
complainant a new detail at his own request, instead of returning to
his position of record, cannot be construed to have caused complainant
a personal harm or loss with respect to a term, condition, or privilege
of his employment.
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.
To satisfy the forty-five day contact requirement, the Commission has
consistently required complainants to contact an EEO Counselor or official
logically connected with the EEO process and "exhibit an intent to begin
the EEO process." EEOC Management Directive (MD-110), 2-1 (November 9,
1999)(citing Kinan v. Department of Defense, EEOC Request No. 05990249
(May 6, 1999); see Cox v. Department of Housing and Urban Development,
EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal
Service, EEOC Request No. 05950933 (July 9, 1996).
Regarding claims (a) through (d), (f) through (h) and (j), the record
in the instant case reveals that complainant contacted an EEO Officer
in May 2001, concerning issues he had with his supervisor. The record
contains an EEO Officer's statement dated August 13, 2002, wherein she
stated that in May 2001, complainant informed her that he did not want
to file a complaint and that he preferred to use the Colonel's chain of
command to resolve his issues. According to the EEO Officer, she then
informed complainant of the forty-five-day time limit in case he decided
to file a complaint concerning his claims. The record also contains the
Colonel's statement. Therein, the Colonel indicated that in late April or
early May 2001, complainant shared his concerns involving his supervisor.
The Colonel stated that he specifically mentioned the possibility of
using the EEO process, as complainant's documents made reference to his
civil rights. The Colonel further stated that complainant indicated that
he did not want to use them but that he instead wanted the Colonel
to investigate these matters. At complainant's request, the Colonel
appointed an AR 15-6 investigator to look into complainant's concerns.
The record contains a copy of the Colonel's letter dated May 14, 2000, to
an investigator listing claims (a) through (d), (f) through (h) and (j).
Complainant did not contact the EEO office again until October 25,
2001. Therefore, the Commission finds that he did not contact an
EEO Counselor with the intent to pursue the EEO complaint process
until October 25, 2001. Complainant's informal attempts to resolve
his claims, through an agency Colonel, do not toll the time limit.
Moreover, as none of the claims occurred within forty-five days of
complainant's initial EEO Counselor contact, a continuing violation
analysis is not necessary. Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Therefore, the Commission finds that
the agency properly dismissed claims (a) through (d), (f) through (h)
and (j) for untimely Counselor contact.
Moreover, regarding when the matter in claim (e) purportedly occurred,
complainant contends he suffered discrimination when his performance
appraisal for the rating period of October 1, 1999 through October 31,
2000, was not returned to him until September 23, 2001. The record shows,
however, that complainant raised the issue of the lack of his performance
appraisal when he met with the agency Colonel in April 2001. We note that
the agency, in response to complainant's appeal, argued that back in April
2001, complainant knew his performance appraisal was ready but refused
to pick it up. In support of its arguments, the agency submits a copy of
the investigative report wherein the investigator found that complainant's
performance appraisal for rating period November 1, 1999 through October
31, 2000 existed. We do not find that complainant has provided sufficient
justification for extending or tolling the forty-five-day time limit.
Therefore, we find that the agency's dismissal of claim (e) for untimely
EEO Counselor contact was proper.
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).
Regarding claim (i), the Commission finds the agency properly dismissed
claim (i) for failure to state a claim. The record indicates that when
his detail was to expire in January 2002, complainant requested another
detail, which request was granted. We find that the matter raised in
this claim does not address a personal loss or harm regarding a term,
condition, or privilege of his employment.
With regard to the basis of age, the Commission determines that the
agency properly dismissed this basis. A review of the file reveals
that in the EEO Counselor's Report, complainant identified himself as
thirty-seven years old. However, as the ADEA clearly provides, only
those individuals who are at least forty years of age are protected from
age discrimination. As such, the agency's decision to dismiss age as a
basis was appropriate.
Final Decision:
Accordingly, the agency decision to dismiss claims (a) through (h) and (j) for untimely EEO Counselor contact; the agency's decision to dismiss claim (i) for failure to state a claim; and the agency's decision to dismiss age as a basis was proper, and is hereby AFFIRMED. | Sammie L. Truelove v. Department of the Army
01A30475
May 13, 2003
.
Sammie L. Truelove,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A30475
Agency No. AREUHQ02JUNE00001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 26, 2002, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In his formal EEO complaint, filed on March 25, 2002, complainant
alleged that he was subjected to harassment on the bases of race, color,
disability, and age when:
(a) A Director of Logistics and a Chief, Supply & Services continuously
moved complainant's subordinates out from under his control.
Communicating directly with them without going through complainant, while
complainant was the Chief of Transportation beginning in 1999, until he
left that position temporarily to be a member of the restationing team
on March 5, 2001;
(b) The Director of Logistics did not select complainant to be the
Acting Director of Logistics in his absence even though complainant's
job description stated that he will serve as the acting DOL in the
absence of the Chief of DOL. Two other employees were appointed the
acting position. An agency employee was appointed Acting DOL, August
1999 through June 2000; and the Chief, Supply & Services was appointed
Acting DOL, July 2000 through August 2000;
(c) in November 1999, complainant's subordinate was insubordinate to
complainant. When complainant tried to discipline her, complainant's
supervisor overruled him;
(d) in June 2000, the Director of Logistics recommended that complainant
receive a one-year extension, rather than a two-year extension that
complainant had requested;
(e) complainant did not receive his performance appraisal fo the rating
period of October 1, 1999 through October 31, 2000, thus causing him not
to receive a QSI Award for that rating period. His performance appraisal
was not returned to him for the rating period until September 23, 2001;
(f) in January 2001, the Director of Logistics told complainant that
the Chief, Supply & Services was ostracizing him within the 104th ASG
organization;
(g) when complainant returned from leave, he learned that his personal
belongings had been removed from his office without his knowledge and the
locks changed to his office at the direction of the Director of Logistics
and Chief, Supply & Services, after he had received approval by an
agency Colonel to be assigned to the restationing team on March 5, 2001;
(h) The Director of Logistics accused complainant of being AWOL, in
failing to report to his position on the restationing team on March 5
and 6, 2001;
(i) complainant was treated disparately when he was not reappointed as
the Chief of Plans and Operations at the end of his temporary assignment.
His temporary assignment to the restationing team began on March 5,
2001 and was to end in 120 days; however, it did not end until January
2002; and
(j) complainant was denied a two-year extension by an agency Colonel in
August 2001, even though he had not been in his position for 5 years;
the person replacing him as the Chief of Plans and Operations, [agency
employee], had been in Europe for at least 10 years.
The agency dismissed claims (a) through (h) and (j) on the grounds that
complainant initiated contact with an EEO Counselor in an untimely manner.
Specifically, the agency determined that the last alleged discriminatory
event occurred in August 2001, but that complainant did not initiate EEO
Counselor contact until October 22, 2001, beyond the forty-five (45)
day limitation period.<1> The agency dismissed claim (i) for failure
to state a claim. The agency found that complainant had not established
that he was an aggrieved employee after being returned to his position of
record after his detail ended. Further, the agency determined that claims
(a) through (j) are not part of a continuing violation. Furthermore,
the agency dismissed age as a basis. The agency noted that complainant
was only 37 years of age at the time of the alleged discriminatory
actions which are the subject of this complaint. Therefore, the agency
concluded that complainant's allegation of age discrimination relative
to this case does not meet the criteria contained in 29 C.F.R. § 1614.103.
On appeal, complainant through counsel, asserts that his EEO contact
occurred in April 2001 when he sought the assistance of a Colonel by
taking advantage of his open door policy. Specifically, complainant
asserts that he made several trips to the Hanau EEO office concerning
issues he had with his supervisor but that the Hanau EEO office was not
operating due to the departure of an EEO Officer. Complainant states
that following several unsuccessful trips to the Hanau EEO office, he
went to the Colonel's office in April 2001. Complainant further argues
that his allegations of discrimination should not have been investigated
by an investigator assigned by the Colonel, but instead should have been
referred to the EEO office. Complainant argues that claim (e) is timely
because he did not receive his performance appraisal until September 2001.
Further, complainant contends that his complaint should be evaluated in
terms of a continuing violation.
In response, the agency argues that claims (a) through (h) were untimely
raised with an EEO Counselor because complainant failed to contact the
EEO office concerning these claims until October 2001, well beyond the
forty-five (45) day limitation period. The agency further argues that
complainant chose to first pursue these matters in another forum, and
that he only contacted the EEO office in October 2001, after his concerns
were determined to be unfounded in the chosen forum. With respect to
claim (e), the agency argues that the date of incident occurred as early
as April 2001, rather than September 21, 2001, as stated by complainant.
As to claim (i), the agency determined that a fair reading of this claim
reflects the following circumstances. Complainant was to be returned to
his position of record after his detail ended in January 2002; however,
complainant requested a new detail. The agency submits documents
reflecting the expiration of the detail in January 2002, complainant's
request for an extension of the detail, and the agency's granting of
that request. The agency further determined that the decision to grant
complainant a new detail at his own request, instead of returning to
his position of record, cannot be construed to have caused complainant
a personal harm or loss with respect to a term, condition, or privilege
of his employment.
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.
To satisfy the forty-five day contact requirement, the Commission has
consistently required complainants to contact an EEO Counselor or official
logically connected with the EEO process and "exhibit an intent to begin
the EEO process." EEOC Management Directive (MD-110), 2-1 (November 9,
1999)(citing Kinan v. Department of Defense, EEOC Request No. 05990249
(May 6, 1999); see Cox v. Department of Housing and Urban Development,
EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal
Service, EEOC Request No. 05950933 (July 9, 1996).
Regarding claims (a) through (d), (f) through (h) and (j), the record
in the instant case reveals that complainant contacted an EEO Officer
in May 2001, concerning issues he had with his supervisor. The record
contains an EEO Officer's statement dated August 13, 2002, wherein she
stated that in May 2001, complainant informed her that he did not want
to file a complaint and that he preferred to use the Colonel's chain of
command to resolve his issues. According to the EEO Officer, she then
informed complainant of the forty-five-day time limit in case he decided
to file a complaint concerning his claims. The record also contains the
Colonel's statement. Therein, the Colonel indicated that in late April or
early May 2001, complainant shared his concerns involving his supervisor.
The Colonel stated that he specifically mentioned the possibility of
using the EEO process, as complainant's documents made reference to his
civil rights. The Colonel further stated that complainant indicated that
he did not want to use them but that he instead wanted the Colonel
to investigate these matters. At complainant's request, the Colonel
appointed an AR 15-6 investigator to look into complainant's concerns.
The record contains a copy of the Colonel's letter dated May 14, 2000, to
an investigator listing claims (a) through (d), (f) through (h) and (j).
Complainant did not contact the EEO office again until October 25,
2001. Therefore, the Commission finds that he did not contact an
EEO Counselor with the intent to pursue the EEO complaint process
until October 25, 2001. Complainant's informal attempts to resolve
his claims, through an agency Colonel, do not toll the time limit.
Moreover, as none of the claims occurred within forty-five days of
complainant's initial EEO Counselor contact, a continuing violation
analysis is not necessary. Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Therefore, the Commission finds that
the agency properly dismissed claims (a) through (d), (f) through (h)
and (j) for untimely Counselor contact.
Moreover, regarding when the matter in claim (e) purportedly occurred,
complainant contends he suffered discrimination when his performance
appraisal for the rating period of October 1, 1999 through October 31,
2000, was not returned to him until September 23, 2001. The record shows,
however, that complainant raised the issue of the lack of his performance
appraisal when he met with the agency Colonel in April 2001. We note that
the agency, in response to complainant's appeal, argued that back in April
2001, complainant knew his performance appraisal was ready but refused
to pick it up. In support of its arguments, the agency submits a copy of
the investigative report wherein the investigator found that complainant's
performance appraisal for rating period November 1, 1999 through October
31, 2000 existed. We do not find that complainant has provided sufficient
justification for extending or tolling the forty-five-day time limit.
Therefore, we find that the agency's dismissal of claim (e) for untimely
EEO Counselor contact was proper.
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).
Regarding claim (i), the Commission finds the agency properly dismissed
claim (i) for failure to state a claim. The record indicates that when
his detail was to expire in January 2002, complainant requested another
detail, which request was granted. We find that the matter raised in
this claim does not address a personal loss or harm regarding a term,
condition, or privilege of his employment.
With regard to the basis of age, the Commission determines that the
agency properly dismissed this basis. A review of the file reveals
that in the EEO Counselor's Report, complainant identified himself as
thirty-seven years old. However, as the ADEA clearly provides, only
those individuals who are at least forty years of age are protected from
age discrimination. As such, the agency's decision to dismiss age as a
basis was appropriate.
Accordingly, the agency decision to dismiss claims (a) through (h) and
(j) for untimely EEO Counselor contact; the agency's decision to dismiss
claim (i) for failure to state a claim; and the agency's decision to
dismiss age as a basis was proper, and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 13, 2003
__________________
Date
1The record in the instant case contains
the EEO Counselor's Report, wherein the EEO Counselor stated that
complainant's initial EEO contact was on October 25, 2001, not October
22, 2001, as stated in the agency's final decision. This disparity in
dates does not affect our disposition of this case.
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Kinan v. Department of Defense, EEOC Request No. 05990249 (May 6, 1999)",
"Cox v. Department of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998)",
"Allen v. United States Postal Service, EEOC Request No... | [
-0.09684796631336212,
0.07231315225362778,
-0.011071338318288326,
0.0755123570561409,
0.004663491155952215,
0.13820232450962067,
0.010797870345413685,
-0.027450524270534515,
-0.0564001090824604,
0.03330942988395691,
0.01002341415733099,
0.018595293164253235,
0.034555092453956604,
0.0134784... |
398 | https://www.eeoc.gov/sites/default/files/decisions/2022_11_04/2022002570.pdf | 2022002570.pdf | PDF | application/pdf | 40,481 | Ken E.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. | April 8, 2022 | Appeal Number: 2022002570
Background:
At the time of events giving rise to this complaint, Complainant worked as a n Equal Opportunity
(EO) Assistant, GS -07, at the Agency’s facility in Fort Lee, Virginia.
On February 28, 2019, Complainant filed an equal employment opportunity (EEO) complaint
alleg ing that the Agency discriminated against him based on disability ( blindness due to retinitis
pigmentosa) when:
1. On January 25, 2019, Program Manager (PM) and Information Technology
Program Management Office Director (IT Director) denied his reasonable
accommodation request to make the Agency’s website and documents compliant
with Section 508 of the Rehabilitation Act, which forced him to resign because he could not perform the essential functions of his position;
2 and
2. From Decembe r 2018 to January 25, 2019, Alternative Dispute Resolution
Manager /Disability Program Manager (DPM) failed to respond to his reasonable
accommodation requests to make EEO office documents compliant with Section 508.
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 AJ. Complainant requested a hearing , and the AJ held a hearing on January 26- 27, 2022.
3 The AJ issued a
decis ion finding discrimination . The Agency subsequently issued a final order rejecting the AJ’s
finding that Complainant proved that the Agency subjected him to discrimination as alleged.
The AJ found that the Agency initially hired Complainant to work in the Agency’s EEO Office
on a temporary basis, but the temporary appointment had been extended numerous times. When
Complainant began working at the Agency, his duties were at the level of an intern , but he
progressed to performing EEO -related work that was more aligned with his job title of EO
Assistant , and he attended EEO counselor training around April 2018. The AJ found that
Complainant’s job duties included: maintaining files and records for all areas of EEO pro gram
management , such as special emphasis program files and complaint files; providing
administrative support associated with the processing of individual and class action EEO
complaints; recording and monitoring complaints; proofreading correspondence; and typing
correspondence, reports, and records in final form from rough drafts . To do this work
Complainant used various common EEO forms , including the EEO c ounselor’s report, intake
forms, and reasonable accommodation request forms . Th e Agency’s EEO forms were housed on
the Agency’s internal, cloud- based platform .
Several Agency employees testified about Complainant ’s effective job performance . DPM said
he was able to perform any work assigned to him, and the EEO Director stated that Complainant
did “good” work.
2 The AJ dismissed a portion of this claim —Complainant’s constructive discharge allegation —
for untimely EEO counselor contact. Complainant does not dispute the dismissal on appeal , and
we therefore do not further address his claim that he was forced to resign herein.
3 Prior to the hearing, Complainant filed a motion to amend the complaint, whic h the AJ denied.
Complainant does not dispute the AJ’s decision to deny the motion on appeal or otherwise
challenge the framing of the complaint .
In August 2017, Complainant made a reasonable accommodation request for Job Access With
Speech (JAWS) software , which is a screen -reader program f or blind or visually impaired users
that provides text -to-speech output . Complainant was granted this accommodation and used the
program’s “auditory function” to review and draft documents . However, several forms that
Complainant used as part of his job—such as the EEO counselor’s report, intake, and reasonable accommodation forms —were improperly labeled such that Com plainant’s JAWS software was
unable to access the documents. The mislabeling of the documents prevented JAWS from
accurately conveying the information in those documents to Complainant so that he could enter
text in proper fields. In addition, Complainant was unable to complete mandatory trainings due
to inaccessibility issues unless he had a coworker sitting with him to assist. For instance,
Complainant could not timely complete the annual cybersecurity training, which resulted in his
common access card being locked. Complainant could not on his own access the Agency’s
internal website, including the program he needed to complete his timecard .
In an effort to rectify some of the accessibility issues Complainant faced, the Agency sometimes had one of Complainant’s coworkers, an Administrative Assistant (CW), sit with Complainant to
assist him on certain tasks. Complainant had no full -time assist or reader, however, and he had
to ask CW, who had her own role within the EEO office, for help when necessary. CW testified
that at the beginning of Complainant’s employment, she assisted him for about 20 hours a week in setting up his computer and helping him navigate the office, though the time she spent assisting him declined as time went on, and she helped Complainant with mandatory trainings and reading various EEO forms as needed.
Complainant made several verbal requests for reasonable accommodation to management,
including DPM, the EEO Director, and PM, who was the Section 508 Coordinator. Section 508
requires federal agencies to make electronic documents and websites accessible to disabled
individuals. When Complainant’s verbal requests were unsuccessful, Complainant followed up
with a written request for reasonable accommodation on September 21, 2018, which stated,
“EEO office forms need to be relabeled for compatibility with screen reader. . . The forms
would need to be converted so that my screen reader is able to allow me to complete daily work
duties ,” including “ finish[ing] an EEO Complaint.”
Complainant agrees that the Agency corrected both the reasonable accommodation form and the
intake form, which left 9 or 10 forms inaccessible to him, including the EEO counselor’s report. These forms were never corrected during Complainant’s employment, and DPM agreed that only the two forms had ever been fixed. As the Section 508 Coordinator, PM acknowledged that DPM and Complainant had informed him that “a lot more” forms required correction. He further
admitted that the Agency’s noncompliance began before Complainant was hired, that it never
achieved compliance during Complainant’s employment, and that PM was concerned the
Agency could face a lawsuit as a result of its noncompliance. On November 30, 2018, after
several months of attempting to receive his accommodation, the EEO Director emailed Complainant saying there was no funding available to address the Section 508 compliance that
would have made the necessary documents accessible.
After learning that his accommodation requests would not be granted, Complainant resigned
from his position, claiming that the resignation was out of frustration that he would be unable to
work independently.
Based on his factual findings, the AJ found that Complainant was a qualified person with a
disability . The AJ concluded that Complainant’s only difficulty involved processing certain
EEO forms because they were inaccessible to his JAWS software. The AJ found that had his reasonable accommodation requests been met —namely, if the Agency had compl ied with
Section 508—Complainant would have been able to perform the essential functions of his EO Assistant position.
The AJ addressed the Agency’s arg ument that “Complainant’s position was merely that of an
assistant and involved no EEO counseling.” The EEO Director testified that the Agency gave
Complainant the opportunity to do EEO counseling “as an opportunity to grow and learn,” and that his position description was “identical” to that of CW , the administrative assistant. The AJ
found that the EEO Director’s testimony lacked credibility and was disputed by the record,
especially in light of the fact that CW and Complainant had different job titles. The AJ also
rejected the Agency’s arguments that its “workaround” of having other employees assist Complainant constituted an effective accommodation . The AJ found that Complainant was
unable to work independently and that he credibly testified he often needed help completing
tasks whe n no coworkers were available to assist him . The AJ therefore found that the Agency’s
attempts at accommodation were ineffective and that the Agency failed to provide Complainant
with a reasonable accommodation in violation of the Rehabilitation Act. For relief, the AJ first addressed Complainant’s request for nonpecuniary, compensatory
damages. Based on Complainant’s testimony at the hearing , the AJ found that Complainant
struggled in his position because of the accessibility issues and that he was frustrated by having to ask coworkers , who were busy with their own work, for help , especially around the holidays
when fewer employees were at the office. Complainant testified that he felt discouraged and that
he was not as effective as he wanted to be in his position, as he believed he could have
accomplished more had there been no accommodation obstacles. Complainant also testified that he already had difficulties getting opportunities as a disabled person, and that his opportunity to
work for the Agency was taken from him . He also testified that the discrimination “stifled [his]
career trajectory,” as he was unable to reach his full potential at the Agency and could have gone
further in his career. He also felt “gun -shy” about purs uing other federal jobs out of fear he
would encounter t he same problems with accessibility. Complainant also testified about
financial difficulties after his resignation, such as having to pay his rent by credit card and
lacking funds for transportation, which caused him stress. Based on this testimony, t he AJ
awarded Complainant $20,000 in nonpecuniary, c ompensatory damages.
The AJ also awarded Complainant attorney’s fees. Based on Complainant’s petition for attorney’s fees and expenses , to which the Agency did not submit any objections before the AJ ,
the AJ awarded Complainant $8,265 in attorney’s fees for 28.5 hours of work.
The AJ also ordered that the Agency place a copy of a notice advising employees of the finding
of discrimination at the Agency’s facility in Fort Lee, Virginia , that the Agency ensure full
compliance with Section 50 8, and that the Agency “take corrective, curative, and preventive
action to ensure that a Rehabilitation Act violation does not recur.”
On appeal, the Agency ’s main contention is that it was under no obligation to provide a
reasonable accommodation for functions not essential to Complainant’s position. The Agency
argues that Complainant’s training as an EEO counselor and his advising complainants on their complaints are not essential functions of an EO Assistant , but that his major duties were instead
administrative in nature . The Agency relies heavily on Complainant’s position description,
arguing that “EO Assistants solve routine problems of limited complexity, gather and provide
factual information, or perfor m tasks in support of higher -level specialists.” The Agency also
points to the testimony of the EEO Director, who explained that the essential EO Assistant functions did not change even though Complainant “cross -train[ed]” to do EEO counseling
duties. The Agency also claims that Complainant admitted during cross -examination that the
essential functions of his position did not include the higher -level functions of an Equal
Employment Specialist (EES) —a position that regularly deals with EEO case processing . With
regard to Complainant’s difficulty in completing mandatory training, the Agency argues that Complainant’s annual training was not part of the essential functions of his job as an EO
Assistant and that the Agency’s noncompliance with Section 508 did not prevent Complainant
from performing his job duties or from passing the mandatory training. The Agency also argues that Complainant did not submit a reasonable accommodation request between his request for JAWS around August 2017, and when he returned from EEO counselor
training in August or September 2018. The Agency points to the period of more than a year
where “there is no men tion [in the report of investigation] of problems with the EEO counselor
forms,” as well as the EEO Director’s testimony that Complainant did not complain to her regarding those forms until he returned from EEO counselor training. The Agency further
argue s that the AJ’s finding that the EEO Director’s testimony lacked credibility was based on a
misunderstanding of the Agency’s migration to a new pay system, which resulted in Complainant and CW having different job titles. The Agency also contends that Complainant’s effective job performance and his nomination for an Agency award “demonstrates he could perform the essential functions of his EO Assistant position” without further accommodation.
Despite the Agency’s position that it was not obligated to provide Com plaining with reasonable
accommodations for nonessential functions, the Agency argues that it “greatly exceeded legal requirements by trying to fix the EEO forms or altering templates so the Complainant’s screen reader could read” the inaccessible forms.
In addition, t he Agency argues that Complainant was responsible for the breakdown in
communication during the interactive process , largely pointing to the fact that, after multiple
revisions between Complainant and DPM regarding the fixing of the reasonabl e accommodation
form, Complainant ultimately failed to give final confirmation that the form was accessible.
The Agency argues that if the finding of discrimination is upheld, we should find that the
Agency acted in good faith to accommodate Complainant’s disability and that we should deny
Complainant compensatory damages. The Agency claims it “worked doggedly to solve difficult
accommodation problems, but it took some time to fix the complex issues with 508 compliance
of the EEO documents.” The Agency also contends that it “demonstrated good faith by diligently taking several very positive steps in trying to accommodat e the Com plainant under
very difficult conditions like procuring the JAWS software, obtaining a screen reader, making forms 508 compliant, and using coworkers to bridge the gaps.” Other than asking that we
“disallow any compensatory damages and attorney fees,” t he Agency does not address any other
relief ordered by the AJ.
Complainant on appeal requests that we affirm the AJ’s decision in full.
Legal Analysis:
the Commission affirm its rejection of an EEOC Administrative Judge’ s (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a n Equal Opportunity
(EO) Assistant, GS -07, at the Agency’s facility in Fort Lee, Virginia.
On February 28, 2019, Complainant filed an equal employment opportunity (EEO) complaint
alleg ing that the Agency discriminated against him based on disability ( blindness due to retinitis
pigmentosa) when:
1. On January 25, 2019, Program Manager (PM) and Information Technology
Program Management Office Director (IT Director) denied his reasonable
accommodation request to make the Agency’s website and documents compliant
with Section 508 of the Rehabilitation Act, which forced him to resign because he could not perform the essential functions of his position;
2 and
2. From Decembe r 2018 to January 25, 2019, Alternative Dispute Resolution
Manager /Disability Program Manager (DPM) failed to respond to his reasonable
accommodation requests to make EEO office documents compliant with Section 508.
At the | Ken E.,1
Complainant,
v.
Lloyd J. Austin III,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 2022002570
Hearing No. 430-2020-00004X
Agency No. PH-19-0041
DECISION
Following its April 8, 2022, final order, the Agency filed a n appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On
appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge’ s (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a n Equal Opportunity
(EO) Assistant, GS -07, at the Agency’s facility in Fort Lee, Virginia.
On February 28, 2019, Complainant filed an equal employment opportunity (EEO) complaint
alleg ing that the Agency discriminated against him based on disability ( blindness due to retinitis
pigmentosa) when:
1. On January 25, 2019, Program Manager (PM) and Information Technology
Program Management Office Director (IT Director) denied his reasonable
accommodation request to make the Agency’s website and documents compliant
with Section 508 of the Rehabilitation Act, which forced him to resign because he could not perform the essential functions of his position;
2 and
2. From Decembe r 2018 to January 25, 2019, Alternative Dispute Resolution
Manager /Disability Program Manager (DPM) failed to respond to his reasonable
accommodation requests to make EEO office documents compliant with Section 508.
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 AJ. Complainant requested a hearing , and the AJ held a hearing on January 26- 27, 2022.
3 The AJ issued a
decis ion finding discrimination . The Agency subsequently issued a final order rejecting the AJ’s
finding that Complainant proved that the Agency subjected him to discrimination as alleged.
The AJ found that the Agency initially hired Complainant to work in the Agency’s EEO Office
on a temporary basis, but the temporary appointment had been extended numerous times. When
Complainant began working at the Agency, his duties were at the level of an intern , but he
progressed to performing EEO -related work that was more aligned with his job title of EO
Assistant , and he attended EEO counselor training around April 2018. The AJ found that
Complainant’s job duties included: maintaining files and records for all areas of EEO pro gram
management , such as special emphasis program files and complaint files; providing
administrative support associated with the processing of individual and class action EEO
complaints; recording and monitoring complaints; proofreading correspondence; and typing
correspondence, reports, and records in final form from rough drafts . To do this work
Complainant used various common EEO forms , including the EEO c ounselor’s report, intake
forms, and reasonable accommodation request forms . Th e Agency’s EEO forms were housed on
the Agency’s internal, cloud- based platform .
Several Agency employees testified about Complainant ’s effective job performance . DPM said
he was able to perform any work assigned to him, and the EEO Director stated that Complainant
did “good” work.
2 The AJ dismissed a portion of this claim —Complainant’s constructive discharge allegation —
for untimely EEO counselor contact. Complainant does not dispute the dismissal on appeal , and
we therefore do not further address his claim that he was forced to resign herein.
3 Prior to the hearing, Complainant filed a motion to amend the complaint, whic h the AJ denied.
Complainant does not dispute the AJ’s decision to deny the motion on appeal or otherwise
challenge the framing of the complaint .
In August 2017, Complainant made a reasonable accommodation request for Job Access With
Speech (JAWS) software , which is a screen -reader program f or blind or visually impaired users
that provides text -to-speech output . Complainant was granted this accommodation and used the
program’s “auditory function” to review and draft documents . However, several forms that
Complainant used as part of his job—such as the EEO counselor’s report, intake, and reasonable accommodation forms —were improperly labeled such that Com plainant’s JAWS software was
unable to access the documents. The mislabeling of the documents prevented JAWS from
accurately conveying the information in those documents to Complainant so that he could enter
text in proper fields. In addition, Complainant was unable to complete mandatory trainings due
to inaccessibility issues unless he had a coworker sitting with him to assist. For instance,
Complainant could not timely complete the annual cybersecurity training, which resulted in his
common access card being locked. Complainant could not on his own access the Agency’s
internal website, including the program he needed to complete his timecard .
In an effort to rectify some of the accessibility issues Complainant faced, the Agency sometimes had one of Complainant’s coworkers, an Administrative Assistant (CW), sit with Complainant to
assist him on certain tasks. Complainant had no full -time assist or reader, however, and he had
to ask CW, who had her own role within the EEO office, for help when necessary. CW testified
that at the beginning of Complainant’s employment, she assisted him for about 20 hours a week in setting up his computer and helping him navigate the office, though the time she spent assisting him declined as time went on, and she helped Complainant with mandatory trainings and reading various EEO forms as needed.
Complainant made several verbal requests for reasonable accommodation to management,
including DPM, the EEO Director, and PM, who was the Section 508 Coordinator. Section 508
requires federal agencies to make electronic documents and websites accessible to disabled
individuals. When Complainant’s verbal requests were unsuccessful, Complainant followed up
with a written request for reasonable accommodation on September 21, 2018, which stated,
“EEO office forms need to be relabeled for compatibility with screen reader. . . The forms
would need to be converted so that my screen reader is able to allow me to complete daily work
duties ,” including “ finish[ing] an EEO Complaint.”
Complainant agrees that the Agency corrected both the reasonable accommodation form and the
intake form, which left 9 or 10 forms inaccessible to him, including the EEO counselor’s report. These forms were never corrected during Complainant’s employment, and DPM agreed that only the two forms had ever been fixed. As the Section 508 Coordinator, PM acknowledged that DPM and Complainant had informed him that “a lot more” forms required correction. He further
admitted that the Agency’s noncompliance began before Complainant was hired, that it never
achieved compliance during Complainant’s employment, and that PM was concerned the
Agency could face a lawsuit as a result of its noncompliance. On November 30, 2018, after
several months of attempting to receive his accommodation, the EEO Director emailed Complainant saying there was no funding available to address the Section 508 compliance that
would have made the necessary documents accessible.
After learning that his accommodation requests would not be granted, Complainant resigned
from his position, claiming that the resignation was out of frustration that he would be unable to
work independently.
Based on his factual findings, the AJ found that Complainant was a qualified person with a
disability . The AJ concluded that Complainant’s only difficulty involved processing certain
EEO forms because they were inaccessible to his JAWS software. The AJ found that had his reasonable accommodation requests been met —namely, if the Agency had compl ied with
Section 508—Complainant would have been able to perform the essential functions of his EO Assistant position.
The AJ addressed the Agency’s arg ument that “Complainant’s position was merely that of an
assistant and involved no EEO counseling.” The EEO Director testified that the Agency gave
Complainant the opportunity to do EEO counseling “as an opportunity to grow and learn,” and that his position description was “identical” to that of CW , the administrative assistant. The AJ
found that the EEO Director’s testimony lacked credibility and was disputed by the record,
especially in light of the fact that CW and Complainant had different job titles. The AJ also
rejected the Agency’s arguments that its “workaround” of having other employees assist Complainant constituted an effective accommodation . The AJ found that Complainant was
unable to work independently and that he credibly testified he often needed help completing
tasks whe n no coworkers were available to assist him . The AJ therefore found that the Agency’s
attempts at accommodation were ineffective and that the Agency failed to provide Complainant
with a reasonable accommodation in violation of the Rehabilitation Act. For relief, the AJ first addressed Complainant’s request for nonpecuniary, compensatory
damages. Based on Complainant’s testimony at the hearing , the AJ found that Complainant
struggled in his position because of the accessibility issues and that he was frustrated by having to ask coworkers , who were busy with their own work, for help , especially around the holidays
when fewer employees were at the office. Complainant testified that he felt discouraged and that
he was not as effective as he wanted to be in his position, as he believed he could have
accomplished more had there been no accommodation obstacles. Complainant also testified that he already had difficulties getting opportunities as a disabled person, and that his opportunity to
work for the Agency was taken from him . He also testified that the discrimination “stifled [his]
career trajectory,” as he was unable to reach his full potential at the Agency and could have gone
further in his career. He also felt “gun -shy” about purs uing other federal jobs out of fear he
would encounter t he same problems with accessibility. Complainant also testified about
financial difficulties after his resignation, such as having to pay his rent by credit card and
lacking funds for transportation, which caused him stress. Based on this testimony, t he AJ
awarded Complainant $20,000 in nonpecuniary, c ompensatory damages.
The AJ also awarded Complainant attorney’s fees. Based on Complainant’s petition for attorney’s fees and expenses , to which the Agency did not submit any objections before the AJ ,
the AJ awarded Complainant $8,265 in attorney’s fees for 28.5 hours of work.
The AJ also ordered that the Agency place a copy of a notice advising employees of the finding
of discrimination at the Agency’s facility in Fort Lee, Virginia , that the Agency ensure full
compliance with Section 50 8, and that the Agency “take corrective, curative, and preventive
action to ensure that a Rehabilitation Act violation does not recur.”
On appeal, the Agency ’s main contention is that it was under no obligation to provide a
reasonable accommodation for functions not essential to Complainant’s position. The Agency
argues that Complainant’s training as an EEO counselor and his advising complainants on their complaints are not essential functions of an EO Assistant , but that his major duties were instead
administrative in nature . The Agency relies heavily on Complainant’s position description,
arguing that “EO Assistants solve routine problems of limited complexity, gather and provide
factual information, or perfor m tasks in support of higher -level specialists.” The Agency also
points to the testimony of the EEO Director, who explained that the essential EO Assistant functions did not change even though Complainant “cross -train[ed]” to do EEO counseling
duties. The Agency also claims that Complainant admitted during cross -examination that the
essential functions of his position did not include the higher -level functions of an Equal
Employment Specialist (EES) —a position that regularly deals with EEO case processing . With
regard to Complainant’s difficulty in completing mandatory training, the Agency argues that Complainant’s annual training was not part of the essential functions of his job as an EO
Assistant and that the Agency’s noncompliance with Section 508 did not prevent Complainant
from performing his job duties or from passing the mandatory training. The Agency also argues that Complainant did not submit a reasonable accommodation request between his request for JAWS around August 2017, and when he returned from EEO counselor
training in August or September 2018. The Agency points to the period of more than a year
where “there is no men tion [in the report of investigation] of problems with the EEO counselor
forms,” as well as the EEO Director’s testimony that Complainant did not complain to her regarding those forms until he returned from EEO counselor training. The Agency further
argue s that the AJ’s finding that the EEO Director’s testimony lacked credibility was based on a
misunderstanding of the Agency’s migration to a new pay system, which resulted in Complainant and CW having different job titles. The Agency also contends that Complainant’s effective job performance and his nomination for an Agency award “demonstrates he could perform the essential functions of his EO Assistant position” without further accommodation.
Despite the Agency’s position that it was not obligated to provide Com plaining with reasonable
accommodations for nonessential functions, the Agency argues that it “greatly exceeded legal requirements by trying to fix the EEO forms or altering templates so the Complainant’s screen reader could read” the inaccessible forms.
In addition, t he Agency argues that Complainant was responsible for the breakdown in
communication during the interactive process , largely pointing to the fact that, after multiple
revisions between Complainant and DPM regarding the fixing of the reasonabl e accommodation
form, Complainant ultimately failed to give final confirmation that the form was accessible.
The Agency argues that if the finding of discrimination is upheld, we should find that the
Agency acted in good faith to accommodate Complainant’s disability and that we should deny
Complainant compensatory damages. The Agency claims it “worked doggedly to solve difficult
accommodation problems, but it took some time to fix the complex issues with 508 compliance
of the EEO documents.” The Agency also contends that it “demonstrated good faith by diligently taking several very positive steps in trying to accommodat e the Com plainant under
very difficult conditions like procuring the JAWS software, obtaining a screen reader, making forms 508 compliant, and using coworkers to bridge the gaps.” Other than asking that we
“disallow any compensatory damages and attorney fees,” t he Agency does not address any other
relief ordered by the AJ.
Complainant on appeal requests that we affirm the AJ’s decision in full.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post -hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. NLRB , 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). An A J’s conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other obj ective evidence so contradicts the
testimony, or the testimony so lacks in credibility , that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).
Reasonable Accommodation Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. §§ 1630.2(o) and (p).
To establish that he was denied a reasonable accommodation, 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 him with a reasonable accommodation. See EEOC Enforcement Guida nce on
Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act ,
EEOC Notice No. 915.002 (October 17, 2002) . A qualified person with a disability is an
individual who can perform the essential functions of the position with or without an
accommodation.
Here, it is undisputed that Complainant is an individual with a disability and that he was
qualified to perform the essential functions of his position. We find that substantial evidence
supports the AJ’s determination that the Agency violated the Rehabilitation Act when the
Agency failed to accommodate Complainant ’s disability by not making its forms and websites
compliant with Section 508 . W ithout Section 508 compliance, Complainant’s a ssistive
technology was unable to read or access the forms or websites necessary to do his work.
The Agency’s position is that the duties for which Complainant required reasonable
accommodations were nonessential , and that he was able to perform all essential functions of the
EO Assistant position without further Section 508 compliance . Substantial evidence, however,
supports the AJ’s finding that Complainant’s EEO processing duties were part of the essential
functions of his position. The Agency also misstates Complainant’s testimony when it claims
Complainant admitted “the essential functions of his job as an EO Assistant did not include the higher[ -]level functions of an EES .” In his testimony, Complainant acknowledged that the EES
position had more responsibility than his position and that EES employees had a higher case load
of EEO complaints, but his testimony is clear that he considered EEO case processing —which
required access to the noncompliant forms —part of his duties. As for there being no mention of
reasonable accommodation issues in the report of investigation for the year -long period between
Complainant’s JAWS software request and his completion of EEO training , Complainant denied
that he made no complaints during that time, and the AJ found Complainant’s testimony
credible. The apparent gap in the report of investigation does not su fficiently contradict
Complainant’s testimony to reject the AJ’s finding in that regard.
The Agency’s other arguments are unavailing. Complainant’s mandatory training is part of his job requirements , and the Agency was required to accommodate him so he c ould complete the
training in a timely manner without his employee identification card being locked. See, e.g. ,
Alonzo N. v. U.S. Postal Serv., EEOC Appeal No. 0120181502 (Sept. 17, 2019) (Commission
found the agency had failed to reasonably accommodate c omplainant when he was not provided
a certified interpreter during training and safety meetings ). The testimony of the EEO Director is
not sufficiently supported by the record for us to reject the AJ’s finding that she lacked
credibility when she claimed CW and Complainant had identical job duties. We also reject the Agency’s argument that Complainant was able to effectively perform his job without the
websites and forms complying with Section 508. That Complainant managed to complete his
tasks using frustrating workarounds, such as asking CW and other Agency employees for help when he needed it, does not mean such workarounds constituted an effective accommodati on
satisfying the Agency’s obligations under the Rehabilitation Act. We reject the Agency’s argument that Complainant contributed to a breakdown in the interactive
process . Complainant’s disability was obvious and undisputed, and the reasonable
accommodatio n had been identified , namely that documents be made compli ant with Section 508
so that his screen -reader could access them . The Agency attempted to grant Complainant his
requested accommodation by correct ing some of the forms, but ultimately failed to make many
forms and websites accessible to Complainant .
Complainant’s purported lapse in providing final confirmation that one of the dozen or so
noncompliant forms had been corrected— after several emails back and forth between him and
DPM regarding edits —does not constitute Complainant’s failure to cooperate in the interactive
process such that the Agency may avoid liability.
Damages and Other Relief
Compensatory Damages
Where an Agency has failed to provide a reasonable accommodation for an individual with a disability, compensatory damages may be awarded if the Agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for his
disability. 42 U.S.C. § 1981a(a)(3); Complainant v. U.S. Postal Serv., EEOC Appeal No.
0120053293 (June 15, 2007). In this case, we find that the Agency failed to demonstrate a good
faith effort in providing a reasonable accommodation to Complainant, resulting in his
resignation. The Agency never attempted to make all the necessary forms and websites
accessible to Complainant, and multiple management officials admitted that the Agency was far from ful ly complian t with Section 508. Moreover, the other accommodations the Agency
provided, such as having coworkers help Complainant, were not fully effective accommodations
such that the Agency can show it acted in good faith. See, e.g. , Waltraud R. v. Dep’t of Agric.,
EEOC Request No. 2021004595 (Mar. 7, 2022) (finding that the agency could not show it acted
in good faith when the accommodations offered were not effective) . The Agency’s arguments
that fixing its Section 508 issues were “complex” and that it was working “under very difficult
conditions ” are unpersuasive. The Agency does not explain why accommodati ng Complainant
was so difficult or why fixing the forms Complainant needed was prohibitively complex.
Indeed, all federal agencies are required to comply with Section 508. Outside of its bare
assertions, t he Agency provides no evidence that its failure to make the documents and websites
accessible was in good faith. As such, Complainant is entitled to compensatory damages.
Nonpecuniary damages are available to compensate an injured party for actual har m, even where
the harm is intan gible. Carter v. Duncan- Higgins , Ltd., 727 F.2d 1225 (D.C. Cir. 1984).
Emotional harm will not be presumed simply because complainant is a victim of discrimination.
See Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the
Civil Rights Act of 1991, EEOC Notice No. 915.002 at 5 (July 14, 1992) . The existence, nature,
and severity of emotional harm must be proved. Id. We note that for a pr oper award of
nonpecuniary , compensatory damages, the amount of the award should not be “monstrously
excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward -Jenkins v. Dep’ t of the Interior ,
EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848
(7th Cir. 1989)).
In Carle v. Dep’t of the Navy, the Commission explained that evidence of nonpecuniary damages
could include a stat ement by complainant explaining how he was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993).
Complainant could also submit documentation of medi cal or psychiatric treatment related to the
effects of the discrimination. Id. However, evidence from a health care provider is not a
mandatory prerequisite to establishing entitlement to nonpecuniary damages. Sinnott v. Dep’t of
Defense, EEOC Appeal No. 01952872 (September 19, 1996).
The more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. See Lawrence v. U.S.
Postal Serv. , EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993)) . The absence of supporting evidence, however,
may affect the amount of damages appropriate in specific cases. Id.
The AJ awarded Comp lainant $20,000 in nonpecuniary, compensatory damages based on his
testimony that he struggled in his position, felt discouraged and ineffective in his job and that
obstacles kept him from accomplis hing more, especially because he felt it was already diffi cult
to get opportunities as a disabled person. The AJ also considered Complainant’s testimony about
his “stifled” career trajectory and the financial hardships he faced after resigning that caused him
stress.
Complainant asks that we affirm the AJ’s nonpecuniary damages award , and t he Agency does
not substantively address the amount of damages the AJ awarded . Taking into consideration
Complainant’s testimony, we find that the AJ’s award of nonpecuniary damages in the amount of
$20,000 is supported by substantial evidence , neither “monstrously excessive” nor the product of
passion or prejudice, and consistent with prior Commission precedent. See Lydia F. v. Dep’t of
Veterans Affs. , EEOC Appeal No. 2020001007 (Sept. 16, 2021) (Commission awarded
complainant $20,000 in nonpecuniary, compensatory damages for denials of reasonable
accommodation that caused emotional distress during a “relatively short” period of
employment) ; Garland C. v. Dep’t of Transp., EEOC Appeal No. 0120182009 (Jan. 29, 2020)
(Commission affirmed an award of $20,000 in nonpecuniary, compensatory damages for discrimination resulting in stress, embarrassment , and damage to professional reputation) .
Attorn ey’s Fees
By federal regulation, the A gency is required to award attorney’s fees for the successful
processing of an EEO complaint in accordance with existing case law and regulatory standards.
29 C.F.R. § 1614.501(e)(1)(H).
To determine the proper amount of the fee, a lodestar amount is reached by calculating the numbers of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart , 461 U.S.
424 (1983). All hours reasonably spent in processing the complaint are compensable.
Fees shall be paid for services performed by an attorney after the filing of a written complaint,
provided that the attorney provides reasonable notice of representation to the agency, AJ, or the
Commission, except that fees are allowable for a reasonable period of time prior to the notification of representation for any services performed in reaching a determination to represent the complainant. 29 C.F.R. § 1614.501(e)(1)(iv).
The AJ awarded Complainant $8,265 in attorney’s f ees, which was all that was requested. On
appeal, the Agency does not specifically dispute the AJ’s award of attorney’s fees. While it
contends that it is not liable for violating the Rehabilitation Act, the Agency makes no argument
contesting Complainant’s fee petition. Upon review the fee petition , we affirm the AJ’s award of
$8,265 in attorney’s fees at the hourly rate of $290 for entries totaling 28.5 hours .
Other Relief
The Agen cy did not address the other relief the AJ awarded, whic h included orders to post a
notice to Agency employees of the finding of discrimination, to comply with Section 508 within
one year, and to “take corrective, curative, and preventive action to ensure that a Rehabilitation
Act violation does not recur .” Because the Agency does not dispute these remedies, we affirm
such relief.
We note that the AJ did not order the Agency to consider discipline or conduct EEO training for any managers or supervi sors at its Headquarters facility . We find that such relief is appropriate
in this case and order it herein .
CONCLUSION
We REVERSE the Agency’s final order rejecting the AJ’s decision finding discrimination. The matter is REMANDED to the Agency for further action in accordance with the Order herein.
ORDER
To the extent it h as not already done so, the Agency shall take the following actions:
1. Within 60 days from the date this decision is issued, the Agency shall pay Complainant $20,000.00 in nonpecuniary, compensatory damages .
2. Within 60 days from the date this decision is issued, the Agency shall pay Complainant $8,265.00 in attorney’s fees.
3. Within 90 days from the date this decision is issued, the Agency shall provide at least
eight hours of EEO training to PM, DPM, IT Director, and EEO Director . The
training shall place special emphasis on the Agency’s obligation to provide reasonable accommodation to qualified individuals with disabilities , including the
need to be compliant with Section 508. The Commission does not consider training
to be a disciplinary action.
4. Within 60 days from the date this decision is issued, the Agency shall consider taking
disciplinary action against PM, DPM, IT Director, and EEO Director for the failure to
provide a reasonable accommodation found to have occurred in this complaint. If the
Agency decides to take disciplinary action, it shall identify the actions taken. If the
Agency decides not to take disciplinary action, then it shall set forth the rea son(s)
with specificity for its decision not to impose discipline. If these officials have left the
Agency’s employment, then the Agency shall furnish documentation of their
departure dates .
5. The Agency shall ensure full compliance with Section 508 to avoi d further failure to
accommodate claims under the Rehabilitation Act. These measures shall occur as
soon as possible, but no later than one year after the date this decision is issued .
6. The Agency shall take corrective, curative, and preventive action to ensure that a Rehabilitation Act violation does not recur.
POSTING ORDER (G0617)
The Agency is ordered to post at its Fort Lee, Virginia facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 cons ecutive 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 signe d 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 s ubmitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1019)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable 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 receipt of this decision. 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 (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 Sect or 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 Compl ainant 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 th e
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 f ile a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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. 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, 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 statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opport unity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, Complainant can submit his or her request and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsidera tion filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c) .
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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) cale ndar 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
September 27, 2022
Date | [
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"Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007)",
"Waltraud R. v. Dep’t of Agric., EEOC Request No. 2021004595 (Mar. 7, 2022)",
"Jenkins v. Dep’ t of the Interior , EEOC Appeal No. 01961483 (March 4, 1... | [
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399 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120103504.txt | 0120103504.txt | TXT | text/plain | 11,656 | Diana L. Grannison, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. | August 4, 2010 | Appeal Number: 0120103504
Complaint Allegations:
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (Black), disability (back disorder), and age (51) when she was issued a Notice of Removal on March 19, 2010, effective April 2, 2010. In its final decision, the Agency dismissed Complainant's complaint for untimely EEO Counselor contact. CONTENTIONS ON APPEAL On appeal, Complainant contends that her EEO Counselor contact was timely because she contacted the EEO office over the telephone on May 3, 2010. Complainant explains that on April 29, 2010, she mailed a letter that was intended for the EEO office, but was instead received at the Merit Systems Protection Board (MSPB). Complainant contends that when she realized this error, she called the EEO office on May 3, 2010 and May 4, 2010, and that the EEO office processed her claim over the telephone. Complainant alleges that the EEO office told her that it would obtain her letter from MSPB. Complainant further alleges that during her telephone conversations with the EEO office, she was assured that her claim had been received in a timely manner.
Background:
In her complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of race (Black), disability (back disorder),
and age (51) when she was issued a Notice of Removal on March 19, 2010,
effective April 2, 2010.
In its final decision, the Agency dismissed Complainant's complaint for
untimely EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her EEO Counselor contact was timely
because she contacted the EEO office over the telephone on May 3, 2010.
Complainant explains that on April 29, 2010, she mailed a letter that
was intended for the EEO office, but was instead received at the Merit
Systems Protection Board (MSPB). Complainant contends that when she
realized this error, she called the EEO office on May 3, 2010 and May 4,
2010, and that the EEO office processed her claim over the telephone.
Complainant alleges that the EEO office told her that it would obtain her
letter from MSPB. Complainant further alleges that during her telephone
conversations with the EEO office, she was assured that her claim had
been received in a timely manner.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that a complainant
must initiate EEO Counselor contact 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. EEOC Regulation 29
C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where
the complainant did not initiate contact with an EEO Counselor within
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. The Commission has adopted a "reasonable suspicion"
standard as opposed to a "supportive facts" standard to determine when
the 45-day time limit 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. McLouglin v. Dep't. of the Treasury, EEOC Request No. 05A01093
(Apr. 24, 2003).
Where timeliness is an issue, the agency bears the burden of proof of
obtaining sufficient information to support a reasoned determination as to
whether that time limit was met. Guy v. Dep't. of Energy, EEOC Request
No, 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't. of Defense,
EEOC Request No. 05920506 (Aug. 25, 1992). Further, the Agency has the
burden of providing evidence or proof to support any decision it makes
regarding the timeliness of a thing. See Ericson v. Dep't. of the Army,
EEOC Request No. 05920623 (Jan. 14, 1993).
In this case, the Agency dismissed Complainant's complaint for untimely
EEO Counselor contact. The Agency found that Complainant received
notice of her termination on March 19, 2010, and initiated EEO Counselor
contact on May 10, 2010, which was beyond the 45-day limitation period for
initiating EEO Counselor contact. Because of this, the Agency dismissed
Complainant's claim.
Upon review, we find that the Agency improperly found that Complainant
failed to initiate EEO Counselor contact in a timely fashion. The Agency
apparently found that the 45-day limitation period for Complainant
to initiate EEO Counselor contact began on March 19, 2010, the
date Complainant was notified of her removal. The record discloses
that the effective date of Complainant's removal was April 2, 2010.
Consequently, Complainant had 45 days from April 2, 2010, to initiate
EEO Counselor contact. See 29 C.F.R. § 1614.105(a)(1). It is undisputed
that Complainant initiated EEO Counselor contact by May 10, 2010, which
is within 45 days of the April 2, 2010, effective date of Complainant's
removal. Thus, we find that Complainant's initial EEO Counselor contact
was timely.1 | Diana L. Grannison,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103504
Agency No. PHI-10-0597-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 4, 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. § 791 et seq. For the reasons that follow,
the Agency's final decision is REVERSED.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of race (Black), disability (back disorder),
and age (51) when she was issued a Notice of Removal on March 19, 2010,
effective April 2, 2010.
In its final decision, the Agency dismissed Complainant's complaint for
untimely EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her EEO Counselor contact was timely
because she contacted the EEO office over the telephone on May 3, 2010.
Complainant explains that on April 29, 2010, she mailed a letter that
was intended for the EEO office, but was instead received at the Merit
Systems Protection Board (MSPB). Complainant contends that when she
realized this error, she called the EEO office on May 3, 2010 and May 4,
2010, and that the EEO office processed her claim over the telephone.
Complainant alleges that the EEO office told her that it would obtain her
letter from MSPB. Complainant further alleges that during her telephone
conversations with the EEO office, she was assured that her claim had
been received in a timely manner.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that a complainant
must initiate EEO Counselor contact 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. EEOC Regulation 29
C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where
the complainant did not initiate contact with an EEO Counselor within
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. The Commission has adopted a "reasonable suspicion"
standard as opposed to a "supportive facts" standard to determine when
the 45-day time limit 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. McLouglin v. Dep't. of the Treasury, EEOC Request No. 05A01093
(Apr. 24, 2003).
Where timeliness is an issue, the agency bears the burden of proof of
obtaining sufficient information to support a reasoned determination as to
whether that time limit was met. Guy v. Dep't. of Energy, EEOC Request
No, 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't. of Defense,
EEOC Request No. 05920506 (Aug. 25, 1992). Further, the Agency has the
burden of providing evidence or proof to support any decision it makes
regarding the timeliness of a thing. See Ericson v. Dep't. of the Army,
EEOC Request No. 05920623 (Jan. 14, 1993).
In this case, the Agency dismissed Complainant's complaint for untimely
EEO Counselor contact. The Agency found that Complainant received
notice of her termination on March 19, 2010, and initiated EEO Counselor
contact on May 10, 2010, which was beyond the 45-day limitation period for
initiating EEO Counselor contact. Because of this, the Agency dismissed
Complainant's claim.
Upon review, we find that the Agency improperly found that Complainant
failed to initiate EEO Counselor contact in a timely fashion. The Agency
apparently found that the 45-day limitation period for Complainant
to initiate EEO Counselor contact began on March 19, 2010, the
date Complainant was notified of her removal. The record discloses
that the effective date of Complainant's removal was April 2, 2010.
Consequently, Complainant had 45 days from April 2, 2010, to initiate
EEO Counselor contact. See 29 C.F.R. § 1614.105(a)(1). It is undisputed
that Complainant initiated EEO Counselor contact by May 10, 2010, which
is within 45 days of the April 2, 2010, effective date of Complainant's
removal. Thus, we find that Complainant's initial EEO Counselor contact
was timely.1
CONCLUSION
Accordingly, we find that the Agency improperly dismissed Complainant's
complaint for untimely EEO Counselor contact. The Agency's final
decision is REVERSED, and Complainant's complaint is REMANDED for further
processing in accordance with the Orders below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim 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 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
February 4, 2011
Date
1 We note that in its final decision, the Agency accurately noted that
the effective date of Complainant's removal was April 2, 2010, but then
applied the incorrect date for the beginning of the 45-day limitation
period.
??
??
??
??
01-2010-3504
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"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.108",
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400 | https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023001761.pdf | 2023001761.pdf | PDF | application/pdf | 11,339 | Celinda L .,1 Complainant, v. Louis DeJoy, Postma ster General, United States Postal Service (Field Are as and Regions), Agency. | December 13, 2022 | Appeal Number: 2023001761
Background:
During the period at issue , Complainant worked as a Rural Carrier Associate at the Agency’s
Scotlandville Post Office in Baton Rouge, Louisiana. On August 18, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccess ful.
On November 22, 2022, Complainant filed a formal complaint claiming that the Agency
discriminated against her based on s ex when:
1. on June 3, 2022, Complainant was terminated from the Postal Service; and
2. on June 3, 2022, Complainant was not afforded union representation.
On December 13, 2022, the Agency dismissed the formal complaint on two grounds. First, the
Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(2) , for untimely EEO Counselor
contact. The Agency determined that Complainant ini tiated EEO Counselo r contact August 18,
2022, which it determined to be beyond the 45- day limitation period. Second, the Agency
dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
Specifically, the Agency found t hat the constituted a co llateral attack on the negotiated grievance
process. The Agency determined that the matter in this claim was outside of the Commission’s
jurisdiction and should have been raised through the grievance and arbitration process .
The i nstant appeal fo llowed. On appeal, Complainant asserts that she was unaware of the 45- day
limitation period and was not given the proper details regarding instructions and procedures on the EEO complaint process. Complainant further asserts that she did not time ly initia ted EEO
Counselor contact because a burglary/vandalism to her home on April 29, 2022.
Legal Analysis:
the Commission’s
jurisdiction and should have been raised through the grievance and arbitration process .
The i nstant appeal fo llowed. On appeal, Complainant asserts that she was unaware of the 45- day
limitation period and was not given the proper details regarding instructions and procedures on the EEO complaint process. Complainant further asserts that she did not time ly initia ted EEO
Counselor contact because a burglary/vandalism to her home on April 29, 2022.
ANALYSIS AND FINDINGS
Failure to State a Claim/Collateral Attack (Claim 2)
An employee cannot use the EEO complaint process to lodge a collateral atta ck on a nother
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 th at can be characterized as a collateral
attack, by definition, involves a challenge to another forum's adjudicatory proceeding, such as
the negotiated grievance process, the workers' compensation process, an internal agency
investigation, or state or feder al litiga tion. See Fisher v. Dep't of Defense , EEOC Request No.
05931059 (July 15, 1994). The Agency properly dismissed this claim. The essence of this claim concerns the denial of
union representation during Complainant’s meeting with management. The prope r forum for
Complainant to have raised her challenges to her alleged denial of union representation was through the negotiated grievance procedure, not in the administrative EEO complaint process.
There is no remedial relief available to Complainan t on this matter through the EEO complaint
process. Therefore, the Agency properly dismissed the instant claim pursuant to 29 C.F.R.
§ 1614.107(a)(1), for failure to state a claim. Untimely EEO Counselor Contact (Claim 1)
EEOC Regulation 29 C.F.R. § 1614.105( a)(1) requires that complaints of discrimin ation should
be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty -five (45) days of the effective date of the action.
Here, the sole discrete act at issue was Complainant’s June 3, 2022 termination. Therefore,
Complainant had 45- days, or until July 18, 2022, to timely initiate EEO Counselor conta ct.
Here, the EEO Counselor’s report reflects that Complainant did not initiate EEO Counselor
contact until August 18, 2022, well beyond 45 days after her termination.
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 p revente d by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the Agency or the Commission. We find unpersuasive Complainant’s statements on appeal that she was unaware of the 45-day
limitation period. The record includes a statement from the Scotlandville Post Office indicating that since February 2021, the EEO Poster 72, dated November 2018, has been on display at the facility since November 2018 and is currently displayed in “co nspicuous places throughout the
facility.” Specifically, the Postmaster explained that the pos ter is displayed on the employee
bulletin boards located in the employee breakrooms. The Postmaster further explains that the EEO Poster 72 advises employe es of the time requirements for timely filing an EEO counseling
request and how to request EEO counseling. We note that on appeal, Complainant does not
address whether she saw the EEO Poster 72. Therefore, we find that the Agency has
demonstrated that Complaina nt had constructive notice of the 45- day limitation period.
We are also unpersuaded by Complainant’s arguments on appeal that an April 29, 2022 burglary at her home prevented her from timely contacting an EEO C ounselor. While the burglary was
unfor tunat e, we note that this incident occurred approximately one month before her termination.
Consequently, we find that Complainant has not provided sufficient justification to warrant
extension of the 45- day limitation period. | Celinda L .,1
Complainant,
v.
Louis DeJoy,
Postma ster General,
United States Postal Service
(Field Are as and Regions),
Agency.
Appeal No. 2023001761
Agency No. 4G-700-0207-22
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Age ncy's final decision dated December 13, 2022, 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 , Complainant worked as a Rural Carrier Associate at the Agency’s
Scotlandville Post Office in Baton Rouge, Louisiana. On August 18, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccess ful.
On November 22, 2022, Complainant filed a formal complaint claiming that the Agency
discriminated against her based on s ex when:
1. on June 3, 2022, Complainant was terminated from the Postal Service; and
2. on June 3, 2022, Complainant was not afforded union representation.
On December 13, 2022, the Agency dismissed the formal complaint on two grounds. First, the
Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(2) , for untimely EEO Counselor
contact. The Agency determined that Complainant ini tiated EEO Counselo r contact August 18,
2022, which it determined to be beyond the 45- day limitation period. Second, the Agency
dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
Specifically, the Agency found t hat the constituted a co llateral attack on the negotiated grievance
process. The Agency determined that the matter in this claim was outside of the Commission’s
jurisdiction and should have been raised through the grievance and arbitration process .
The i nstant appeal fo llowed. On appeal, Complainant asserts that she was unaware of the 45- day
limitation period and was not given the proper details regarding instructions and procedures on the EEO complaint process. Complainant further asserts that she did not time ly initia ted EEO
Counselor contact because a burglary/vandalism to her home on April 29, 2022.
ANALYSIS AND FINDINGS
Failure to State a Claim/Collateral Attack (Claim 2)
An employee cannot use the EEO complaint process to lodge a collateral atta ck on a nother
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 th at can be characterized as a collateral
attack, by definition, involves a challenge to another forum's adjudicatory proceeding, such as
the negotiated grievance process, the workers' compensation process, an internal agency
investigation, or state or feder al litiga tion. See Fisher v. Dep't of Defense , EEOC Request No.
05931059 (July 15, 1994). The Agency properly dismissed this claim. The essence of this claim concerns the denial of
union representation during Complainant’s meeting with management. The prope r forum for
Complainant to have raised her challenges to her alleged denial of union representation was through the negotiated grievance procedure, not in the administrative EEO complaint process.
There is no remedial relief available to Complainan t on this matter through the EEO complaint
process. Therefore, the Agency properly dismissed the instant claim pursuant to 29 C.F.R.
§ 1614.107(a)(1), for failure to state a claim. Untimely EEO Counselor Contact (Claim 1)
EEOC Regulation 29 C.F.R. § 1614.105( a)(1) requires that complaints of discrimin ation should
be brought to the attention of the Equal Employment Opportunity Counselor within forty- five
(45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty -five (45) days of the effective date of the action.
Here, the sole discrete act at issue was Complainant’s June 3, 2022 termination. Therefore,
Complainant had 45- days, or until July 18, 2022, to timely initiate EEO Counselor conta ct.
Here, the EEO Counselor’s report reflects that Complainant did not initiate EEO Counselor
contact until August 18, 2022, well beyond 45 days after her termination.
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 p revente d by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the Agency or the Commission. We find unpersuasive Complainant’s statements on appeal that she was unaware of the 45-day
limitation period. The record includes a statement from the Scotlandville Post Office indicating that since February 2021, the EEO Poster 72, dated November 2018, has been on display at the facility since November 2018 and is currently displayed in “co nspicuous places throughout the
facility.” Specifically, the Postmaster explained that the pos ter is displayed on the employee
bulletin boards located in the employee breakrooms. The Postmaster further explains that the EEO Poster 72 advises employe es of the time requirements for timely filing an EEO counseling
request and how to request EEO counseling. We note that on appeal, Complainant does not
address whether she saw the EEO Poster 72. Therefore, we find that the Agency has
demonstrated that Complaina nt had constructive notice of the 45- day limitation period.
We are also unpersuaded by Complainant’s arguments on appeal that an April 29, 2022 burglary at her home prevented her from timely contacting an EEO C ounselor. While the burglary was
unfor tunat e, we note that this incident occurred approximately one month before her termination.
Consequently, we find that Complainant has not provided sufficient justification to warrant
extension of the 45- day limitation period.
CONCLUSION
We AFFIRM the A genc y’s final decision dismissing the instant formal complaint for the reason s
discussed above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider 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 inter pretation of material fact or
law; or
2. The appellate decision will have a substantial impact on th e polic ies, 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 reconsid eration , 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 r equest 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,
Washin gton, 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 agency’ 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 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).
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 th at 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, filin g a civil action will terminate the
administrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you wa nt to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with t he civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in t he civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appoin tment 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 Compla inant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSIO N:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
April 17, 2023
Date | [
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"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)",
"Fisher v. Dep't of Defense , EEOC Request No. 05931059 (July 15, 1994)",
"29 C.F.R. § 1... | [
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401 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120171523.txt | 0120171523.txt | TXT | text/plain | 12,518 | Carolyn M.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. | February 26, 2013 | Appeal Number: 0120171523
Background:
At the time of events giving rise to this complaint, Complainant was a former Athletic Trainer at the Agency's Hospital at Camp Lejeune facility in Camp Lejeune, North Carolina.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(a) To remove the document that indicated Complainant was terminated for lack of performance and instead provide documentation that she resigned her position for personal and family medical reasons.
(d) Appoint an investigation into the allegation of false information on Complainant's time cards and inform her of the results;
(e) Appoint an investigation into the allegation that members of the Agency have released private and personal information about Complainant to prospective employers and inform her of the result.
The record indicated that via email dated February 23, 2016, Complainant contacted the U.S. Marine Corps over the phone in order to obtain documentation regarding her settlement agreement. The Deputy Marine Corps EEO Officer referred Complainant's request to the Agency's Human Resources Officer (HR Officer) at the facility. He provided Complainant with the HR Officer's contact information including email, address and phone number. In addition, the Deputy Marine Corps EEO Officer provided Complainant with the email, mailing address and phone number for the Agency EEO Specialist who was involved with Complainant's initial contact in 2013. Finally, in the same correspondence, the Deputy Marine Corps EEO Officer reminded Complainant that, per the settlement agreement, she needed to notify the Agency EEO Director in writing of the alleged non-compliance within 30 calendar days of the date she found out about the alleged breach. He strongly recommended that she submit her claims of non-compliance in writing and to mail it via certified mail with return receipt requested. In response to her request for documentation, the Marine Corps Deputy EEO Officer sent Complainant an email dated February 26, 2016. The email provided Complainant with a copy of her SF-50 including the cancellation of the original termination and the replacement form indicating that she resigned for "personal reasons."
Complainant asserted that she was pro se. At that time, she contacted the EEO Director with the Office of Government Ethics in May 2016, regarding her claim of breach. Complainant hired counsel. At that point with her Attorney, by letter to the Agency dated October 6, 2016, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with provisions (a), (d), and (e) of the agreement. The Attorney noted that the Agency had not responded to the claim of breach as of November 14, 2016. As such, on February 21, 2017, Complainant filed the instant appeal.
The Agency responded to the appeal. In response, the Agency indicated that Complainant failed to comply with the notice requiring Complainant to allege breach within 30 days of notice of the breach. The Agency pointed to the emails sent by the Deputy Marine Corps EEO Officer providing Complainant with the correct contact at the Agency's EEO Office. Despite having the correct information by February 25, 2016, Complainant failed to contact her to allege her claim of breach. Instead, on May 17, 2016, the Agency noted that Complainant wrote a letter to the EEO Director of the Office of Governmental Ethics. The Agency also indicated that this letter was mailed beyond the 30 days from her February emails to the Deputy Marine Corps EEO Officer. In addition, the Attorney alleged breach with the Agency in October 2016, which is similarly beyond the 30-day time frame. As such, the Agency argued that Complainant was untimely in alleging breach.
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).
If Complainant believes that the Agency has failed to comply with the terms of the settlement agreement, Complainant shall notify the EEO Director, in writing of the alleged noncompliance within 30 days of the date when Complainant knew or should have known of the alleged non-compliance. Complainant may request the terms of the SA be specifically implemented, or alternatively, that the complaint be reinstated for further processing from the point processing ceased.
In the instant case, we find that Complainant's allegation of breach is clearly untimely raised. The Commission has held that individuals using the EEO process must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See Odel v. Dep't of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). Here, Complainant and the Agency signed the agreement in February 2013. She waited three years until February 2016 to contact the Agency requesting copies of her records. She also did not provide any explanation for such an inquiry after three years. Furthermore, when she was provided with the correct contact information by the Deputy Marine Corps EEO Officer in order to challenge the settlement agreement, she did not make use of the information. We also note, as stated above, that the EEO official she was instructed to contact was the same EEO Specialist with whom she raised the initial matter. As such, we are not persuaded by Complainant's claim that she was not aware who she was to contact regarding a claim of breach. We therefore, determine that Complainant failed to diligently pursue her breach claims and they are untimely raised. | Carolyn M.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120171523
Agency No. 13-68093-00505
DECISION
Complainant filed an appeal with this Commission alleging that the Agency was not in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Athletic Trainer at the Agency's Hospital at Camp Lejeune facility in Camp Lejeune, North Carolina.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(a) To remove the document that indicated Complainant was terminated for lack of performance and instead provide documentation that she resigned her position for personal and family medical reasons.
(d) Appoint an investigation into the allegation of false information on Complainant's time cards and inform her of the results;
(e) Appoint an investigation into the allegation that members of the Agency have released private and personal information about Complainant to prospective employers and inform her of the result.
The record indicated that via email dated February 23, 2016, Complainant contacted the U.S. Marine Corps over the phone in order to obtain documentation regarding her settlement agreement. The Deputy Marine Corps EEO Officer referred Complainant's request to the Agency's Human Resources Officer (HR Officer) at the facility. He provided Complainant with the HR Officer's contact information including email, address and phone number. In addition, the Deputy Marine Corps EEO Officer provided Complainant with the email, mailing address and phone number for the Agency EEO Specialist who was involved with Complainant's initial contact in 2013. Finally, in the same correspondence, the Deputy Marine Corps EEO Officer reminded Complainant that, per the settlement agreement, she needed to notify the Agency EEO Director in writing of the alleged non-compliance within 30 calendar days of the date she found out about the alleged breach. He strongly recommended that she submit her claims of non-compliance in writing and to mail it via certified mail with return receipt requested. In response to her request for documentation, the Marine Corps Deputy EEO Officer sent Complainant an email dated February 26, 2016. The email provided Complainant with a copy of her SF-50 including the cancellation of the original termination and the replacement form indicating that she resigned for "personal reasons."
Complainant asserted that she was pro se. At that time, she contacted the EEO Director with the Office of Government Ethics in May 2016, regarding her claim of breach. Complainant hired counsel. At that point with her Attorney, by letter to the Agency dated October 6, 2016, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with provisions (a), (d), and (e) of the agreement. The Attorney noted that the Agency had not responded to the claim of breach as of November 14, 2016. As such, on February 21, 2017, Complainant filed the instant appeal.
The Agency responded to the appeal. In response, the Agency indicated that Complainant failed to comply with the notice requiring Complainant to allege breach within 30 days of notice of the breach. The Agency pointed to the emails sent by the Deputy Marine Corps EEO Officer providing Complainant with the correct contact at the Agency's EEO Office. Despite having the correct information by February 25, 2016, Complainant failed to contact her to allege her claim of breach. Instead, on May 17, 2016, the Agency noted that Complainant wrote a letter to the EEO Director of the Office of Governmental Ethics. The Agency also indicated that this letter was mailed beyond the 30 days from her February emails to the Deputy Marine Corps EEO Officer. In addition, the Attorney alleged breach with the Agency in October 2016, which is similarly beyond the 30-day time frame. As such, the Agency argued that Complainant was untimely in alleging breach.
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).
If Complainant believes that the Agency has failed to comply with the terms of the settlement agreement, Complainant shall notify the EEO Director, in writing of the alleged noncompliance within 30 days of the date when Complainant knew or should have known of the alleged non-compliance. Complainant may request the terms of the SA be specifically implemented, or alternatively, that the complaint be reinstated for further processing from the point processing ceased.
In the instant case, we find that Complainant's allegation of breach is clearly untimely raised. The Commission has held that individuals using the EEO process must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See Odel v. Dep't of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). Here, Complainant and the Agency signed the agreement in February 2013. She waited three years until February 2016 to contact the Agency requesting copies of her records. She also did not provide any explanation for such an inquiry after three years. Furthermore, when she was provided with the correct contact information by the Deputy Marine Corps EEO Officer in order to challenge the settlement agreement, she did not make use of the information. We also note, as stated above, that the EEO official she was instructed to contact was the same EEO Specialist with whom she raised the initial matter. As such, we are not persuaded by Complainant's claim that she was not aware who she was to contact regarding a claim of breach. We therefore, determine that Complainant failed to diligently pursue her breach claims and they are untimely raised.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's 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
June 27, 2017
__________________
Date
2 Complainant notified the Agency of the alleged breach on October 6, 2016. After failing to receive a response, Complainant filed an appeal on February 21, 2017. In response to Complainant's appeal, the Agency submits a brief setting forth its determination that it is in compliance with the agreement. Therefore, in the interest of judicial economy, we will view the document as the Agency decision and accept the appeal.
------------------------------------------------------------
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402 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120162654.txt | 0120162654.txt | TXT | text/plain | 11,009 | Chad L,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. | July 22, 2016 | Appeal Number: 0120162654
Background:
At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer at an Agency facility in Chattanooga, Tennessee. On January 14, 2015, Complainant initiated contact with an Equal Employment Opportunity (EEO) Counselor alleging that the Agency subjected him to hostile work environment harassment based on religion (Christian) when:
1. between 2012 and June 20, 2014, a coworker (C1) placed anti-Christian signs outside of his cubicle wall, which faced Complainant's cubicle,
2. on multiple occasions since 2012, C1 made anti-Christian comments, such as Complainant worships a "Spaghetti Monster" and "Anyone can make a fake God to worship," and
3. on September 10, 2014, Complainant turned over an offensive picture posted by C1 to the Agency's Office of Internal Affairs (OIA), and nothing was done to address the matter.
Complainant stated that he works in a small office with four coworkers, and that he and two other coworkers applied for a promotion, for which he was selected. Complainant stated, since that time (August 12, 2012), the office atmosphere has been hostile and C1, who used to be a friend, has become antagonistic toward him. Complainant stated that he reported C1's behavior to management and requested an OIA investigation, but he is uncertain of the status of those inquiries. Complainant stated that he was unaware of the timeframe for EEO contact until his supervisor suggested he read the Agency EEO policy. Complainant stated, in May 2014, he requested a hardship transfer to the Agency's Nashville, Tennessee office. On February 23, 2015, Complainant filed a formal EEO complaint reiterating the above claim of harassment.
The Agency investigated Complainant's claim. Following the investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former. During the hearing stage, the Agency motioned for dismissal based on untimely EEO contact.
On June 13, 2016, the assigned AJ issued a decision dismissing Complainant's claim, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The AJ stated that the Agency showed that it provided training on EEO deadlines to Complainant on multiple occasions, including November 25, 2013. The AJ found that Complainant had "constructive notice" of the 45-day time limit to initiate EEO contact. Further, the AJ found that Complainant failed to show that he was so medically-incapacitated2 that he could not initiate EEO contact in a timely manner. The AJ found that Complainant failed to show grounds for extending the 45-day time frame or tolling the time limit.
On July 22, 2016, the Agency issued a final decision adopting the AJ's dismissal. The instant appeal from Complainant followed. On appeal, Complainant stated that he was medically- incapacitated with anxiety and stress so he was unable to initiate EEO contact in a timely manner. Complainant stated that he provided evidence to support his contentions. (Complainant provided three letters from behavioral health professionals - dated April 2, 2014, April 4, 2014, and undated - referring to his treatment for emotional distress due to the hostile work environment and the resulting need for a hardship transfer.)
Legal Analysis:
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 or, in the case of personnel action, within forty-five (45) days of the effective date of the action.
Here, the Agency properly dismissed Complainant's complaint on the ground of untimely EEO Counselor contact. The most recent alleged discriminatory event occurred on September 10, 2014 (the day Complainant presented evidence to OIA regarding coworker harassment and they did not address it). However, Complainant did not initiate contact with an EEO Counselor until January 14, 2015, which is well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor. The record shows that Complainant attempted to process his concerns through other internal Agency forums prior to initiating EEO contact.
On appeal, Complainant failed to present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). First, 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). Second, the Commission has also held, in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October 29, 1992). Here, Complainant did not provide medical documentation showing that he was medically incapacitated such that he could not contact an EEO counselor until January 14, 2015. | Chad L,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120162654
Agency No. HSICE026092015
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated July 22, 2016, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer at an Agency facility in Chattanooga, Tennessee. On January 14, 2015, Complainant initiated contact with an Equal Employment Opportunity (EEO) Counselor alleging that the Agency subjected him to hostile work environment harassment based on religion (Christian) when:
1. between 2012 and June 20, 2014, a coworker (C1) placed anti-Christian signs outside of his cubicle wall, which faced Complainant's cubicle,
2. on multiple occasions since 2012, C1 made anti-Christian comments, such as Complainant worships a "Spaghetti Monster" and "Anyone can make a fake God to worship," and
3. on September 10, 2014, Complainant turned over an offensive picture posted by C1 to the Agency's Office of Internal Affairs (OIA), and nothing was done to address the matter.
Complainant stated that he works in a small office with four coworkers, and that he and two other coworkers applied for a promotion, for which he was selected. Complainant stated, since that time (August 12, 2012), the office atmosphere has been hostile and C1, who used to be a friend, has become antagonistic toward him. Complainant stated that he reported C1's behavior to management and requested an OIA investigation, but he is uncertain of the status of those inquiries. Complainant stated that he was unaware of the timeframe for EEO contact until his supervisor suggested he read the Agency EEO policy. Complainant stated, in May 2014, he requested a hardship transfer to the Agency's Nashville, Tennessee office. On February 23, 2015, Complainant filed a formal EEO complaint reiterating the above claim of harassment.
The Agency investigated Complainant's claim. Following the investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former. During the hearing stage, the Agency motioned for dismissal based on untimely EEO contact.
On June 13, 2016, the assigned AJ issued a decision dismissing Complainant's claim, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The AJ stated that the Agency showed that it provided training on EEO deadlines to Complainant on multiple occasions, including November 25, 2013. The AJ found that Complainant had "constructive notice" of the 45-day time limit to initiate EEO contact. Further, the AJ found that Complainant failed to show that he was so medically-incapacitated2 that he could not initiate EEO contact in a timely manner. The AJ found that Complainant failed to show grounds for extending the 45-day time frame or tolling the time limit.
On July 22, 2016, the Agency issued a final decision adopting the AJ's dismissal. The instant appeal from Complainant followed. On appeal, Complainant stated that he was medically- incapacitated with anxiety and stress so he was unable to initiate EEO contact in a timely manner. Complainant stated that he provided evidence to support his contentions. (Complainant provided three letters from behavioral health professionals - dated April 2, 2014, April 4, 2014, and undated - referring to his treatment for emotional distress due to the hostile work environment and the resulting need for a hardship transfer.)
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action.
Here, the Agency properly dismissed Complainant's complaint on the ground of untimely EEO Counselor contact. The most recent alleged discriminatory event occurred on September 10, 2014 (the day Complainant presented evidence to OIA regarding coworker harassment and they did not address it). However, Complainant did not initiate contact with an EEO Counselor until January 14, 2015, which is well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor. The record shows that Complainant attempted to process his concerns through other internal Agency forums prior to initiating EEO contact.
On appeal, Complainant failed to present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). First, 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). Second, the Commission has also held, in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October 29, 1992). Here, Complainant did not provide medical documentation showing that he was medically incapacitated such that he could not contact an EEO counselor until January 14, 2015.
Accordingly, we find that Complainant has failed to provide sufficient justification for extending or tolling the limitation period.
CONCLUSION
After careful review of the record, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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
March 8, 2018
__________________
Date
2 The record reveals that Complainant continued to work as a Deportation Officer without significant absence during the relevant period.
------------------------------------------------------------
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403 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01973417.txt | 01973417.txt | TXT | text/plain | 10,740 | December 11, 1998 | Appeal Number: 01973417
Case Facts:
Appellant filed the instant appeal from the agency's March 3, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. The agency defined the complaint as alleging that
appellant was discriminated against when she was notified that her
request for reinstatement was denied on March 11, 1996.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 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 that appellant did not
contact an EEO Counselor until July 17, 1996. The EEO Counselor's report
shows that appellant initially contacted an EEO Counselor on July 15,
1996, which is still beyond the 45 day time deadline.
On appeal appellant argues that she was unaware of the time limit
for contacting 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 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. 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 the complaint
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.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall 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 the complaint
for investigation or issue a new decision dismissing the complaint.
A copy of the letter accepting the complaint or new decision dismissing
the complaint must be sent to the Compliance Officer as referenced
herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. §2000e-16© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410. | Audrie M. Buck v. United States Postal Service
01973417
December 11, 1998
Audrie M. Buck, )
Appellant, )
)
v. ) Appeal No. 01973417
) Agency No. 4-H-320-1268-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's March 3, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. The agency defined the complaint as alleging that
appellant was discriminated against when she was notified that her
request for reinstatement was denied on March 11, 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 that appellant did not
contact an EEO Counselor until July 17, 1996. The EEO Counselor's report
shows that appellant initially contacted an EEO Counselor on July 15,
1996, which is still beyond the 45 day time deadline.
On appeal appellant argues that she was unaware of the time limit
for contacting 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 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. 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 the complaint
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.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall 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 the complaint
for investigation or issue a new decision dismissing the complaint.
A copy of the letter accepting the complaint or new decision dismissing
the complaint must be sent to the Compliance Officer as referenced
herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. §2000e-16© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
December 11, 1998
DATE Ronnie Blumenthal, 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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0.05800317972898483,
0.060475096106529236,
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0.06320422142744064,
0.08745467662811279,
0.015821486711502075,
-0.03094514273107052,
-0.01050... | |
404 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120181066.pdf | 0120181066.pdf | PDF | application/pdf | 11,211 | Tanya D .,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (VA) , Agency. | January 18, 2018 | Appeal Number: 0120181066
Background:
At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse at the
Agency’s Johnson VA Medical Center (VAMC) in Charleston, South Carolina. On October 19, 2017, Complainant initiated contact with an Equal Employment Opportunity
(EEO) counselor alleging that the Agency discriminated against her on the base s of race
(African -American), sex (female), age, and reprisal for prior protected EEO activity when , on
August 10, 2017, the Agency scheduled a Professional Review Board (PRB) to review
Complainant’s conduct and, subsequently, the Agency removed Complainant from employment.
On December 1, 2017, Complainant filed a formal EEO complaint alleging , between January
2016 and August 2017, the Agency subjected her to hostile work environment harassment on the
bases of race, sex, age, and reprisal when the Agency:
1. improperly removed Complainant from her Nurse position, citing “Failure to
qualify during probationary period; ” 2
2. improperly categoriz ed Complainant as a probationary employee ;
3. falsely accused Complainant of violations of law and professional and
licensing standards ; and
4. spread false and disparaging allegations, unduly scrutiniz ed Complainant’s
mood, behavior, and performance, issued Complainant improper disciplinary
actions and performance appraisals, and denied Complainant’s requests for
leave.
In its final decision dated January 18, 2018, the Agency dismissed Complainant’s formal
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The
Agency stated the effective date of the most recent alleged discriminatory e vent was September
3, 2017 and Complainant initiated EEO contact on October 19, 2017, which is outside of the statutory timeframe . The Agency stated that Complainant had constructive knowledge of
statutory timeframes because, in January 2016, she received EEO training during New Employee
Orientation and, since at least December 2009 , EEO time and contact information was posted at
the Charleston VAMC .
In a signed Declaration dated January 12, 2018, an Agency EEO Manager (EM1) stated that Complainant received EEO training in New Employee Orientation on January 12, 2016. EM1 provided a roster titled, “New Employee Orientation: January 12, 2016 Received C opy of
Medical Center EEO and Prevention of Sexual Harassment Policy Statements Office Resolution Management EEO Complaint Process and Mediation Brochures” bearing Complainant’s typewritten name and a signature. EM1 stated that EEO -related postings with the 45- day
statutory timeframe are posted in common areas in the VAMC. Also, the record contains
photographs of an EEO complaint process flowchart with contact and timeline information on
common area bulletin boards.
The instant appeal from Complainant followed. On appeal, Complainant stated that the dismissal is improper because she “had no reason to believe she was being subjected to
discrimination when she initially received the letter of removal.” Complainant stated, on September 16, 2017, she file d an appeal with the Merit Systems Protection Board (MSPB) and
that the MSPB concluded subsequently that it did not have jurisdiction. The record contains an
MSPB Initial Decision, dated October 19, 2017, stating that Complainant withdrew her MSPB
appeal and hence the matter was dismissed.
2 We note t he letter of Separation during Probation to Complainant is dated August 14, 2017, and
provided a separation effective date of August 29, 2017. ( The letter provided notice of right to
initiate the EEO process within 45 calendar days of the effective date of the separation. It did
not provide appeal rights to the Merits Systems Protection Board or other forum .) Later, t he
Agency amended the effective date of s eparation to September 3, 2017. A Notification of
Personnel Action for t ermination bears the September 3 effective date.
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. Dep’ t of
the Navy , EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimi nation, but before all the facts that
support a charge of discrimination have become apparent.
Additionally, 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 p art of the same unlawful practice and
at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan
,
122 S. Ct. 2061 (June 10, 2002). The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”
Id.
We find that the A gency properly dismissed complainant's c laim of harassment for untimely
EEO Counselor contact. The record discloses that the most recent alleged d iscriminatory event
(removal) was effective September 3, 2017, and Complainant initiated contact with an EEO counselor on October 19, 2017, which is beyond the forty -five (45) day limitation period. The
record shows that Complainant filed an MSPB appeal regarding the removal although she was not informed of the right to do so. The removal letter provided information on how to proceed in
the EEO process and the statutory timeframe. W e conclude that Complainant has presented no
persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. | Tanya D .,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs (VA) ,
Agency.
Appeal No. 0120181066
Agency No. 200I-0534-2018100409
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 18, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse at the
Agency’s Johnson VA Medical Center (VAMC) in Charleston, South Carolina. On October 19, 2017, Complainant initiated contact with an Equal Employment Opportunity
(EEO) counselor alleging that the Agency discriminated against her on the base s of race
(African -American), sex (female), age, and reprisal for prior protected EEO activity when , on
August 10, 2017, the Agency scheduled a Professional Review Board (PRB) to review
Complainant’s conduct and, subsequently, the Agency removed Complainant from employment.
On December 1, 2017, Complainant filed a formal EEO complaint alleging , between January
2016 and August 2017, the Agency subjected her to hostile work environment harassment on the
bases of race, sex, age, and reprisal when the Agency:
1. improperly removed Complainant from her Nurse position, citing “Failure to
qualify during probationary period; ” 2
2. improperly categoriz ed Complainant as a probationary employee ;
3. falsely accused Complainant of violations of law and professional and
licensing standards ; and
4. spread false and disparaging allegations, unduly scrutiniz ed Complainant’s
mood, behavior, and performance, issued Complainant improper disciplinary
actions and performance appraisals, and denied Complainant’s requests for
leave.
In its final decision dated January 18, 2018, the Agency dismissed Complainant’s formal
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The
Agency stated the effective date of the most recent alleged discriminatory e vent was September
3, 2017 and Complainant initiated EEO contact on October 19, 2017, which is outside of the statutory timeframe . The Agency stated that Complainant had constructive knowledge of
statutory timeframes because, in January 2016, she received EEO training during New Employee
Orientation and, since at least December 2009 , EEO time and contact information was posted at
the Charleston VAMC .
In a signed Declaration dated January 12, 2018, an Agency EEO Manager (EM1) stated that Complainant received EEO training in New Employee Orientation on January 12, 2016. EM1 provided a roster titled, “New Employee Orientation: January 12, 2016 Received C opy of
Medical Center EEO and Prevention of Sexual Harassment Policy Statements Office Resolution Management EEO Complaint Process and Mediation Brochures” bearing Complainant’s typewritten name and a signature. EM1 stated that EEO -related postings with the 45- day
statutory timeframe are posted in common areas in the VAMC. Also, the record contains
photographs of an EEO complaint process flowchart with contact and timeline information on
common area bulletin boards.
The instant appeal from Complainant followed. On appeal, Complainant stated that the dismissal is improper because she “had no reason to believe she was being subjected to
discrimination when she initially received the letter of removal.” Complainant stated, on September 16, 2017, she file d an appeal with the Merit Systems Protection Board (MSPB) and
that the MSPB concluded subsequently that it did not have jurisdiction. The record contains an
MSPB Initial Decision, dated October 19, 2017, stating that Complainant withdrew her MSPB
appeal and hence the matter was dismissed.
2 We note t he letter of Separation during Probation to Complainant is dated August 14, 2017, and
provided a separation effective date of August 29, 2017. ( The letter provided notice of right to
initiate the EEO process within 45 calendar days of the effective date of the separation. It did
not provide appeal rights to the Merits Systems Protection Board or other forum .) Later, t he
Agency amended the effective date of s eparation to September 3, 2017. A Notification of
Personnel Action for t ermination bears the September 3 effective date.
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. Dep’ t of
the Navy , EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimi nation, but before all the facts that
support a charge of discrimination have become apparent.
Additionally, 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 p art of the same unlawful practice and
at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan
,
122 S. Ct. 2061 (June 10, 2002). The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”
Id.
We find that the A gency properly dismissed complainant's c laim of harassment for untimely
EEO Counselor contact. The record discloses that the most recent alleged d iscriminatory event
(removal) was effective September 3, 2017, and Complainant initiated contact with an EEO counselor on October 19, 2017, which is beyond the forty -five (45) day limitation period. The
record shows that Complainant filed an MSPB appeal regarding the removal although she was not informed of the right to do so. The removal letter provided information on how to proceed in
the EEO process and the statutory timeframe. W e conclude that 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 dismissing Complainant's complaint is AFFIRMED .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting state ment 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 t o 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 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
May 21, 2019
Date | [
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405 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024001932.pdf | 2024001932.pdf | PDF | application/pdf | 11,438 | Breanne S,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. | December 4, 2023 | Appeal Number: 2024001932
Background:
At the time of events giving rise to this complaint, Complainant worked as a Sales Services/
Distribution Assoc iate at the Agency’s Pleasant Hills Post Office in Pittsburgh, Pennsylvania.
On November 22, 2023, Complainant filed a formal complaint alleging that the Agency
subjected her to disc rimination on the bases of race (African American ), religion (Muslim), and
age ( unspecified) when on June 21, 2023, management addressed Complainant’s attendance and
work record on the workroom floor. The Agency dismissed Complainant’s claim for untimely EEO Counselor contact pursuant to 29
C.F.R. §1614.107(a)(2) and untimely filing pursuant to 29 C.F.R. 1614.107(a)(2) . The Agency
concluded that the Complainant’s initial contact on August 21, 2023 was outside th e forty - five
(45) day required by the statute. The Agency noted that the C omplainant did not claim to be
unaware of the time limit for contacting EEO Counselor. The Agency further concluded that
Complainant filed her formal complaint outside the fifteen ( 15) day period required by statute.
The Agency noted that a signature confir mation w as obtained on November 6, 2023, confirming
the receipt of the N otice of Right to F ile a complaint thus triggering the fifteen (15) filing period.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, the Complainant claims that she was unaware of the forty - five ( 45) day filing period
and did not see the EEO poster displayed in the work fa cility. Complainant also claims that she
did not receive the Notice of R ight to File a complaint until November 7, 2023 and therefore
filed a timely complaint as required by statute. The Agency did not submit a brief in response to this 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 interpretation 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 c omplaint’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 interpretation 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 c omplaint’s allegations must
be made in favor of the complainant.
ANALYSIS
Untimely EEO Contact
EEOC regulation s require that complaints of discrimination be brought to the attention of the
EEO counselor within forty -five (45) days of the date of the matter alleged to be discriminatory
or, in the case of a personnel action, within forty- five (45) days of the effective date of the
action. 29 C.F.R. § 1614.105(a)(1).
The record shows that the alleged discriminatory incident occurred on June 21, 2023. However,
the Complainant did not initiate contact with an EEO counselor until August 21, 2023, which is outside the f orty-five (45) day limit prescribed by the statute.
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 h er control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
Complainant alleged that she was unaware of the forty -five (45) day filing period and did not see
the EEO poster displayed in her work facility. However, t he record contains an affidavit from a
supervisor at the work facility attesting to the presence of the EEO poster and that it includ ed a
detailed timeline for timely EEO Counselor Contact and listed other statutory time limits
relevant for EEO filings. See Report of Invest igation (ROI) at 37. The supervisor testified that
the EEO poster had been posted in the workplace since he began working at the facility in
August 2015. Id. Further, the EEO Dispute Resolution S pecialist’s Inquiry Report attests to EEO
poster being properly displayed in the workplace . ROI at 28.
The Commission has found that constructive knowledge will be imputed where an agency has fulfilled its statutory obligation by posting notices informing employees of their rights and obligations under EEO regulations, as long as the record contains suffici ent information from
which the Commission could find that the poster contained notice of the time limit for initiating EEO counseling. See Hedy B. Dep’t of Homeland Security, EEOC Appeal No. 2021002516
(Jun. 8, 2021); Yashuk v. U.S. Postal Serv., EEOC Requ est No. 05890382 (Jun. 2, 1989).
Considering the record, we find that Complainant had constructive knowledge of the statutory time limits. Complainant does not otherwise allege that she was prevented by circumstances
beyond her control from contacting the Counselor within the time limits. Therefore, we find that
Complainant failed to comply with the applicable time limits regarding EEO contact without proper justification for her delay .
Final Decision:
Accordingly, the Agency’s final decision dismissing the Complainant’s complaint is AFFIRMED. | Breanne S,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2024001932
Agency No. 4B-150-0147-23
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated December 4, 2023, 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 Agency’s final decision is AFFIRMED.
ISSUE PRESENTED
Whether the Agency properly dismissed the complaint for failure to contact an EEO Counselor
within the 45 -day time limitations perio d and failure to file a formal complaint within the 15 -day
period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Services/
Distribution Assoc iate at the Agency’s Pleasant Hills Post Office in Pittsburgh, Pennsylvania.
On November 22, 2023, Complainant filed a formal complaint alleging that the Agency
subjected her to disc rimination on the bases of race (African American ), religion (Muslim), and
age ( unspecified) when on June 21, 2023, management addressed Complainant’s attendance and
work record on the workroom floor. The Agency dismissed Complainant’s claim for untimely EEO Counselor contact pursuant to 29
C.F.R. §1614.107(a)(2) and untimely filing pursuant to 29 C.F.R. 1614.107(a)(2) . The Agency
concluded that the Complainant’s initial contact on August 21, 2023 was outside th e forty - five
(45) day required by the statute. The Agency noted that the C omplainant did not claim to be
unaware of the time limit for contacting EEO Counselor. The Agency further concluded that
Complainant filed her formal complaint outside the fifteen ( 15) day period required by statute.
The Agency noted that a signature confir mation w as obtained on November 6, 2023, confirming
the receipt of the N otice of Right to F ile a complaint thus triggering the fifteen (15) filing period.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, the Complainant claims that she was unaware of the forty - five ( 45) day filing period
and did not see the EEO poster displayed in the work fa cility. Complainant also claims that she
did not receive the Notice of R ight to File a complaint until November 7, 2023 and therefore
filed a timely complaint as required by statute. The Agency did not submit a brief in response to this 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 interpretation 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 c omplaint’s allegations must
be made in favor of the complainant.
ANALYSIS
Untimely EEO Contact
EEOC regulation s require that complaints of discrimination be brought to the attention of the
EEO counselor within forty -five (45) days of the date of the matter alleged to be discriminatory
or, in the case of a personnel action, within forty- five (45) days of the effective date of the
action. 29 C.F.R. § 1614.105(a)(1).
The record shows that the alleged discriminatory incident occurred on June 21, 2023. However,
the Complainant did not initiate contact with an EEO counselor until August 21, 2023, which is outside the f orty-five (45) day limit prescribed by the statute.
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 h er control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
Complainant alleged that she was unaware of the forty -five (45) day filing period and did not see
the EEO poster displayed in her work facility. However, t he record contains an affidavit from a
supervisor at the work facility attesting to the presence of the EEO poster and that it includ ed a
detailed timeline for timely EEO Counselor Contact and listed other statutory time limits
relevant for EEO filings. See Report of Invest igation (ROI) at 37. The supervisor testified that
the EEO poster had been posted in the workplace since he began working at the facility in
August 2015. Id. Further, the EEO Dispute Resolution S pecialist’s Inquiry Report attests to EEO
poster being properly displayed in the workplace . ROI at 28.
The Commission has found that constructive knowledge will be imputed where an agency has fulfilled its statutory obligation by posting notices informing employees of their rights and obligations under EEO regulations, as long as the record contains suffici ent information from
which the Commission could find that the poster contained notice of the time limit for initiating EEO counseling. See Hedy B. Dep’t of Homeland Security, EEOC Appeal No. 2021002516
(Jun. 8, 2021); Yashuk v. U.S. Postal Serv., EEOC Requ est No. 05890382 (Jun. 2, 1989).
Considering the record, we find that Complainant had constructive knowledge of the statutory time limits. Complainant does not otherwise allege that she was prevented by circumstances
beyond her control from contacting the Counselor within the time limits. Therefore, we find that
Complainant failed to comply with the applicable time limits regarding EEO contact without proper justification for her delay .
CONCLUSION
Accordingly, the Agency’s final decision dismissing the Complainant’s complaint is AFFIRMED.
2 Since we affirm the Agency’s dismissal of the complaint on the basis of untimely EEO
Counselor contact , we find that it is not necessary to make a determination on the second basis
for dismis sal regarding the untimely filing of the formal complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0124.1)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) 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 their request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within t
he 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by their full name and official title. Failure to do so
may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or departmen t in which you work. If you file a
request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the cou rt 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
June 27, 2024
Date | [
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406 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/closed0120131682.r.txt | closed0120131682.r.txt | TXT | text/plain | 11,918 | August 28, 2012 | Appeal Number: 0120131682
Background:
During the period at issue, Complainant worked as a Electrician at the Agency's Grand Coulee Dam facility in Electric City, Washington. On June 25, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and in reprisal for prior protected EEO activity.
In its final decision dated August 28, 2012, the Agency determined that Complainant's complaint was comprised of the following claim: Complainant was forced to resign from his position.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency reasoned that the alleged discriminatory incident occurred on November 2, 2011, but Complainant did not initiate EEO contact until April 17, 2012, outside of the applicable time period.
The Agency, in its final decision, further stated that "[t]he EEO Counselor's Report indicated that Complainant made contact back on November 22, 2011, stating he wanted to initiate a complaint. On November 22, 2011, the Regional EEO Counselor sent Complainant the required informal counseling forms for his signature via certified mail that were received by Complainant on November 25, 2011. On December 6...and 14, 2011, the Regional EEO Counselor made attempts to contact Complainant requesting his signed EEO Counseling forms. On December 5, 2011, the EEO Counselor talked to Complainant and once again inquired about the EEO Counseling forms. At that time, Complainant stated that he had talked to an attorney and did not want to continue in the EEO process."
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The 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.
We find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. The record reflects that the alleged discriminatory incident (Complainant's forced termination) occurred on November 2, 2011. The Agency acknowledges in its EEO Counselor's report that Complainant initiated EEO contact on November 22, 2011. However, according to the Counselor's Report, Complainant asserted on December 15, 2011, that he did not wish to continue the EEO process. On appeal, however, Complainant asserts that at no time did he indicate to the EEO Counselor that he did not wish to continue with his EEO complaint. We note that the record does not contain any signed documentation from Complainant indicating that he did not wish to pursue the EEO process subsequent to his November 22, 2011 EEO contact.
The Agency asserts that Complainant did not return the counseling forms after his EEO contact in November 2011, and thus he failed to cooperate. To the extent, that the Agency sent Complainant counseling forms via letter dated November 22, 2011, and Complainant did not return the counseling forms, we note that the Agency's November 22, 2011 letter did not indicate to Complainant that failure to return the counseling forms would result in the dismissal of this matter. 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. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In the instant matter, we find that the Agency has not met its burden. | Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 0120131682
Agency No. BOR-12-0449
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 28, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Electrician at the Agency's Grand Coulee Dam facility in Electric City, Washington. On June 25, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and in reprisal for prior protected EEO activity.
In its final decision dated August 28, 2012, the Agency determined that Complainant's complaint was comprised of the following claim: Complainant was forced to resign from his position.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency reasoned that the alleged discriminatory incident occurred on November 2, 2011, but Complainant did not initiate EEO contact until April 17, 2012, outside of the applicable time period.
The Agency, in its final decision, further stated that "[t]he EEO Counselor's Report indicated that Complainant made contact back on November 22, 2011, stating he wanted to initiate a complaint. On November 22, 2011, the Regional EEO Counselor sent Complainant the required informal counseling forms for his signature via certified mail that were received by Complainant on November 25, 2011. On December 6...and 14, 2011, the Regional EEO Counselor made attempts to contact Complainant requesting his signed EEO Counseling forms. On December 5, 2011, the EEO Counselor talked to Complainant and once again inquired about the EEO Counseling forms. At that time, Complainant stated that he had talked to an attorney and did not want to continue in the EEO process."
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 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.
We find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. The record reflects that the alleged discriminatory incident (Complainant's forced termination) occurred on November 2, 2011. The Agency acknowledges in its EEO Counselor's report that Complainant initiated EEO contact on November 22, 2011. However, according to the Counselor's Report, Complainant asserted on December 15, 2011, that he did not wish to continue the EEO process. On appeal, however, Complainant asserts that at no time did he indicate to the EEO Counselor that he did not wish to continue with his EEO complaint. We note that the record does not contain any signed documentation from Complainant indicating that he did not wish to pursue the EEO process subsequent to his November 22, 2011 EEO contact.
The Agency asserts that Complainant did not return the counseling forms after his EEO contact in November 2011, and thus he failed to cooperate. To the extent, that the Agency sent Complainant counseling forms via letter dated November 22, 2011, and Complainant did not return the counseling forms, we note that the Agency's November 22, 2011 letter did not indicate to Complainant that failure to return the counseling forms would result in the dismissal of this matter. 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. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In the instant matter, we find that the Agency has not met its burden.
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 (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision 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 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
December 3, 2013
Date
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)",
"Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.108",
"29 C.F.R. § 1614.503(a)",
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407 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A32474_r.txt | 01A32474_r.txt | TXT | text/plain | 11,008 | Colleen A. Green v. U.S. Department of Agriculture 01A32474 July 9, 2003 . Colleen A. Green, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency. | July 9, 2003 | Appeal Number: 01A32474
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the basis of disability when: complainant was not selected for the position of Program Technician, CO-3 through CO-7, on July 25, 2001.
Legal Analysis:
the Commission's policy that constructive knowledge of EEO rights
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. United States 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 complainant of
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 limitations for contacting
an EEO Counselor. See id. (citing Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993)).
In the present 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. The agency did not provide any evidence
in the record showing that EEO posters were on display in complainant's
work facility, either in the form of a copy of any EEO posters or in an
affidavit describing the location of the posters during the relevant time
period. Nor does the agency provide persuasive evidence that complainant
was otherwise notified of the time limit for contacting an EEO Counselor
at any time during her employment with the agency. The only relevant
information in the record was a signed Request, Authorization Agreement
and Certification of Training for EEO/CR training in August 1995, an
attendance roster at EEO/Civil Rights Training on January 15, 1998,
and a copy of an Appointment of Equal Employment Opportunity Counselor.
This information alone, however, is inadequate to satisfy the agency's
burden of showing that the complainant had actual or constructive notice
of the time limit for contacting an EEO Counselor. Specifically,
none of the alleged information provided shows that complainant was
advised of the forty-five-day time limit for contacting an EEO Counselor.
Therefore, the Commission cannot find that the complainant had actual or
constructive notice of the time limits for contacting an EEO Counselor and
we can not find complainant's contact of an EEO Counselor to be untimely. | Colleen A. Green v. U.S. Department of Agriculture
01A32474
July 9, 2003
.
Colleen A. Green,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A32474
Agency No. 020759
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated February 4, 2003, 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. In her complaint, complainant alleged that she was subjected
to discrimination on the basis of disability when: complainant was not
selected for the position of Program Technician, CO-3 through CO-7,
on July 25, 2001.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
contact. Complainant argues that she was unaware of the time limit for
contacting an EEO Counselor.
The agency noted that complainant was notified in writing on July 25,
2001, that she was not selected for the position at issue; however,
she failed to contact an EEO Counselor until February 12, 2002, which
was beyond the applicable limitations period. The agency stated that it
submitted evidence that complainant was given EEO/Civil Rights Training
on August 28, 1995, and Introduction to Civil Rights on January 15, 1998.
The agency noted that complainant's signature is affixed to the agency's
submitted attendance roster. Further, the agency claimed that complainant
should have been aware of the time limit since the agency posted and
made available to all employees a copy of the Notice of Appointment of
EEO Counselor and contact information on September 1, 1998. Finally, the
agency notes that complainant admits she ultimately located the necessary
information to file a discrimination complaint at the agency's website.
It is the Commission's policy that constructive knowledge of EEO rights
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. United States 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 complainant of
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 limitations for contacting
an EEO Counselor. See id. (citing Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993)).
In the present 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. The agency did not provide any evidence
in the record showing that EEO posters were on display in complainant's
work facility, either in the form of a copy of any EEO posters or in an
affidavit describing the location of the posters during the relevant time
period. Nor does the agency provide persuasive evidence that complainant
was otherwise notified of the time limit for contacting an EEO Counselor
at any time during her employment with the agency. The only relevant
information in the record was a signed Request, Authorization Agreement
and Certification of Training for EEO/CR training in August 1995, an
attendance roster at EEO/Civil Rights Training on January 15, 1998,
and a copy of an Appointment of Equal Employment Opportunity Counselor.
This information alone, however, is inadequate to satisfy the agency's
burden of showing that the complainant had actual or constructive notice
of the time limit for contacting an EEO Counselor. Specifically,
none of the alleged information provided shows that complainant was
advised of the forty-five-day time limit for contacting an EEO Counselor.
Therefore, the Commission cannot find that the complainant had actual or
constructive notice of the time limits for contacting an EEO Counselor and
we can not find complainant's contact of an EEO Counselor to be untimely.
Accordingly, the agency's decision to dismiss complainant's complaint
is REVERSED and the complaint is REMANDED to the agency for further
processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2003
__________________
Date
| [
"Piccone v. United States Postal Service, EEOC Request No. 05950678 (April 11, 1996)",
"Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990)",
"Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.108",
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408 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0520110173.txt | 0520110173.txt | TXT | text/plain | 11,317 | Roger F. Schofield, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency. | November 2, 2010 | Appeal Number: 0120082521
Background:
In the appellate decision, Complainant, a Supervisory Assistant to the
Special Agent in Charge (ATSAC) at the Agency's facility in Las Vegas,
Nevada, alleged that the Agency harassed him in reprisal for prior
protected EEO activity when: (1) In August 2006, he was directed by the
Assistant Special Agent in Charge (A-1) to submit any notes he had from
a selection panel showing negative remarks made by another ATSAC, (B-l),
regarding his dislike for a particular Federal Air Marshal (C-1). After
Complainant turned over his notes, he became aware that A-1 provided
those notes to B-l; (2) In October 2005, A-1 threatened him with physical
violence and threw rolled up documents at him which hit him in the face;
(3) In August 2006, A-1 made an inappropriate comment that suggested
that he hold urine sample cups during drug testing; (4) In November
2006, A-1 attempted to solicit derogatory information about him in
order to subvert any future investigations; (5) On August 12, 2006, A-1
assigned him to work a six-day week, while the retired annuitants were
allowed to participate in a golf tournament; and, (6) In October 2006,
A-1 arbitrarily assigned him to work over the Christmas holiday whereas
the newly hired B-l did not have to work. An EEOC Administrative Judge
(AJ) issued a decision without a hearing finding no discrimination.
The AJ determined that the alleged actions involved in this case were not
sufficiently severe or pervasive to constitute a hostile work environment.
The Agency fully adopted the AJ's decision.
The Commission however, modified the finding of no discrimination
and found that the AJ had erred as a matter of law with respect to his
findings of no discrimination concerning claims 1 and 4. Specifically,
the Commission found that Complainant had established a prima facie case
of reprisal but the Agency had provided legitimate, non-discriminatory
reasons for its actions with respect to claims 3, 5, and 6, and
Complainant failed to establish pretext.1
With respect to claims 1 and 4, however the Commission found that the
record evidence contained an email from A-1, entitled "Request for EEO
Assistance" which stated:
I am ready to file a counter-complaint, can you [first name]
document some of
[Complainant's first name] [sic] comments about me (F-king me in
the A-, etc).
The email also contained a forwarded email from an EEO counselor that was
copied to A-1. In the email, the EEO counselor stated that Complainant
had filed an informal EEO complaint in which he alleged that he was
harassed by A-1 and requested remedies. The Commission found that the
only reasonable interpretation of A-1's November 15, 2006 email was that
it was motivated by Complainant's EEO activity. The Commission also
found that A-1 had entangled himself into Complainant's EEO activity
when he ordered Complainant to provide him with the notes he submitted
for an EEO investigation. There was no evidence that A-l's actions were
merely an unbiased attempt to assist with the investigation of C-l's
EEO complaint. Instead, by verbally sharing the notes with B-l, it is
clear that A-1 procured Complainant's notes and exposed its contents
in an effort to intimidate Complainant and interfere with an ongoing
EEO investigation. Thus, the Commission concluded that A-1 unlawfully
retaliated against Complainant by interfering with his EEO activity.
Consequently, the previous decision found that the AJ committed legal
error when she found that Complainant was not subjected to reprisal
because of his EEO activity.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency requests that
the Commission reconsider its decision because the alleged retaliatory
acts occurred within the context of litigation and as such, should not
be considered interference with Complainant's EEO activity. The Agency
also argues that further scrutiny of the record evidence shows that
forwarding an email was not a publication of Complainant's EEO activity
but simply a request for documentation to managers that had a need to
know of the forthcoming complaint.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that the Agency has not shown that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or that the appellate decision will have a substantial impact
on the policies, practices, or operations of the agency. The Commission
has long held that an employee may suffer unlawful retaliation if his
supervisor interferes with his EEO activity, as the previous decision
correctly found occurred in this case. See Binseel v. Depl. of the Army,
EEOC Request No. 05970584 (October 8, 1998); see also Marr v. Dept. of the
Air Force, EEOC Appeal No. 01941344 (June 27, 1996); Whidbee v. Dept. of
the Navy, EEOC Appeal No. 0120040193 (March 31, 2005).
In the instant case, the Agency characterizes the matters in claims
(1) and (4), as actions that were associated with litigation.
The supervisor's email, however, reads as a personal attack against
Complainant and does not appear to have been made in preparation for
litigation, as the email did not come from the Agency's attorney nor did
it come from anyone in the EEO office. This was a personal email from
Complainant's supervisor to other parties. Moreover, the supervisor's
email informs its recipients that Complainant was involved in the
EEO process. While the Agency has argued that the recipients of the
email had a need know this information, we find that the Agency has put
forth no evidence which demonstrates that these individuals had a need to
know or were directly involved in this matter. We find it reasonable to
conclude therefore that A-1 unlawfully retaliated against Complainant by
interfering with his EEO activity. Therefore, the Commission finds that
the Agency has not demonstrated that the appellate decision was clearly
erroneous. Accordingly, the decision in EEOC Appeal No. 0120082521
remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
The Agency shall comply with the Order as set forth below.
CONCLUSION
The Agency's request for reconsideration is hereby denied.
ORDER
The Agency is ordered to take the following remedial actions:
1. The Agency shall provide EEO training to all managers and
supervisors at the Agency's facilities in Las Vegas, Nevada. The training
shall place special emphasis on the Agency's obligation to prevent
retaliation and interference with the EEO process. The Commission does
not consider training to be a disciplinary action.
2. The Agency shall consider taking disciplinary action against
A-1, the responsible management official. The Agency shall report its
Legal Analysis:
EEOC Regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates that:
(1) the appellate decision involved a clearly erroneous interpretation
of material fact or law; or (2) the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency. See 29 C.F.R. § 1614.405(b).
ISSUE PRESENTED
The issue presented in this case is whether the Agency demonstrated
that it met the criteria for reconsideration set forth in 29 C.F.R. §
1614.405(b).
BACKGROUND
In the appellate decision, Complainant, a Supervisory Assistant to the
Special Agent in Charge (ATSAC) at the Agency's facility in Las Vegas,
Nevada, alleged that the Agency harassed him in reprisal for prior
protected EEO activity when: (1) In August 2006, he was directed by the
Assistant Special Agent in Charge (A-1) to submit any notes he had from
a selection panel showing negative remarks made by another ATSAC, (B-l),
regarding his dislike for a particular Federal Air Marshal (C-1). After
Complainant turned over his notes, he became aware that A-1 provided
those notes to B-l; (2) In October 2005, A-1 threatened him with physical
violence and threw rolled up documents at him which hit him in the face;
(3) In August 2006, A-1 made an inappropriate comment that suggested
that he hold urine sample cups during drug testing; (4) In November
2006, A-1 attempted to solicit derogatory information about him in
order to subvert any future investigations; (5) On August 12, 2006, A-1
assigned him to work a six-day week, while the retired annuitants were
allowed to participate in a golf tournament; and, (6) In October 2006,
A-1 arbitrarily assigned him to work over the Christmas holiday whereas
the newly hired B-l did not have to work. An EEOC Administrative Judge
(AJ) issued a decision without a hearing finding no discrimination.
The AJ determined that the alleged actions involved in this case were not
sufficiently severe or pervasive to constitute a hostile work environment.
The Agency fully adopted the AJ's decision.
The Commission however, modified the finding of no discrimination
and found that the AJ had erred as a matter of law with respect to his
findings of no discrimination concerning claims 1 and 4. Specifically,
the Commission found that Complainant had established a prima facie case
of reprisal but the Agency had provided legitimate, non-discriminatory
reasons for its actions with respect to claims 3, 5, and 6, and
Complainant failed to establish pretext.1
With respect to claims 1 and 4, however the Commission found that the
record evidence contained an email from A-1, entitled "Request for EEO
Assistance" which stated:
I am ready to file a counter-complaint, can you [first name]
document some of
[Complainant's first name] [sic] comments about me (F-king me in
the A-, etc).
The email also contained a forwarded email from an EEO counselor that was
copied to A-1. In the email, the EEO counselor stated that Complainant
had filed an informal EEO complaint in which he alleged that he was
harassed by A-1 and requested remedies. The Commission found that the
only reasonable interpretation of A-1's November 15, 2006 email was that
it was motivated by Complainant's EEO activity. The Commission also
found that A-1 had entangled himself into Complainant's EEO activity
when he ordered Complainant to provide him with the notes he submitted
for an EEO investigation. There was no evidence that A-l's actions were
merely an unbiased attempt to assist with the investigation of C-l's
EEO complaint. Instead, by verbally sharing the notes with B-l, it is
clear that A-1 procured Complainant's notes and exposed its contents
in an effort to intimidate Complainant and interfere with an ongoing
EEO investigation. Thus, the Commission concluded that A-1 unlawfully
retaliated against Complainant by interfering with his EEO activity.
Consequently, the previous decision found that the AJ committed legal
error when she found that Complainant was not subjected to reprisal
because of his EEO activity.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency requests that
the Commission reconsider its decision because the alleged retaliatory
acts occurred within the context of litigation and as such, should not
be considered interference with Complainant's EEO activity. The Agency
also argues that further scrutiny of the record evidence shows that
forwarding an email was not a publication of Complainant's EEO activity
but simply a request for documentation to managers that had a need to
know of the forthcoming complaint.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that the Agency has not shown that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or that the appellate decision will have a substantial impact
on the policies, practices, or operations of the agency. The Commission
has long held that an employee may suffer unlawful retaliation if his
supervisor interferes with his EEO activity, as the previous decision
correctly found occurred in this case. See Binseel v. Depl. of the Army,
EEOC Request No. 05970584 (October 8, 1998); see also Marr v. Dept. of the
Air Force, EEOC Appeal No. 01941344 (June 27, 1996); Whidbee v. Dept. of
the Navy, EEOC Appeal No. 0120040193 (March 31, 2005).
In the instant case, the Agency characterizes the matters in claims
(1) and (4), as actions that were associated with litigation.
The supervisor's email, however, reads as a personal attack against
Complainant and does not appear to have been made in preparation for
litigation, as the email did not come from the Agency's attorney nor did
it come from anyone in the EEO office. This was a personal email from
Complainant's supervisor to other parties. Moreover, the supervisor's
email informs its recipients that Complainant was involved in the
EEO process. While the Agency has argued that the recipients of the
email had a need know this information, we find that the Agency has put
forth no evidence which demonstrates that these individuals had a need to
know or were directly involved in this matter. We find it reasonable to
conclude therefore that A-1 unlawfully retaliated against Complainant by
interfering with his EEO activity. Therefore, the Commission finds that
the Agency has not demonstrated that the appellate decision was clearly
erroneous. | Roger F. Schofield, Jr.,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Request No. 0520110173
Appeal No. 0120082521
Hearing No. 480-2007-00617X
Agency No. HS06TSA005682
DENIAL
The Agency timely requested reconsideration of the decision in Roger
F. Schofield, Jr., v. Department of Homeland Security, EEOC Appeal
No. 0120082521 (November 2, 2010). EEOC Regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates that:
(1) the appellate decision involved a clearly erroneous interpretation
of material fact or law; or (2) the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency. See 29 C.F.R. § 1614.405(b).
ISSUE PRESENTED
The issue presented in this case is whether the Agency demonstrated
that it met the criteria for reconsideration set forth in 29 C.F.R. §
1614.405(b).
BACKGROUND
In the appellate decision, Complainant, a Supervisory Assistant to the
Special Agent in Charge (ATSAC) at the Agency's facility in Las Vegas,
Nevada, alleged that the Agency harassed him in reprisal for prior
protected EEO activity when: (1) In August 2006, he was directed by the
Assistant Special Agent in Charge (A-1) to submit any notes he had from
a selection panel showing negative remarks made by another ATSAC, (B-l),
regarding his dislike for a particular Federal Air Marshal (C-1). After
Complainant turned over his notes, he became aware that A-1 provided
those notes to B-l; (2) In October 2005, A-1 threatened him with physical
violence and threw rolled up documents at him which hit him in the face;
(3) In August 2006, A-1 made an inappropriate comment that suggested
that he hold urine sample cups during drug testing; (4) In November
2006, A-1 attempted to solicit derogatory information about him in
order to subvert any future investigations; (5) On August 12, 2006, A-1
assigned him to work a six-day week, while the retired annuitants were
allowed to participate in a golf tournament; and, (6) In October 2006,
A-1 arbitrarily assigned him to work over the Christmas holiday whereas
the newly hired B-l did not have to work. An EEOC Administrative Judge
(AJ) issued a decision without a hearing finding no discrimination.
The AJ determined that the alleged actions involved in this case were not
sufficiently severe or pervasive to constitute a hostile work environment.
The Agency fully adopted the AJ's decision.
The Commission however, modified the finding of no discrimination
and found that the AJ had erred as a matter of law with respect to his
findings of no discrimination concerning claims 1 and 4. Specifically,
the Commission found that Complainant had established a prima facie case
of reprisal but the Agency had provided legitimate, non-discriminatory
reasons for its actions with respect to claims 3, 5, and 6, and
Complainant failed to establish pretext.1
With respect to claims 1 and 4, however the Commission found that the
record evidence contained an email from A-1, entitled "Request for EEO
Assistance" which stated:
I am ready to file a counter-complaint, can you [first name]
document some of
[Complainant's first name] [sic] comments about me (F-king me in
the A-, etc).
The email also contained a forwarded email from an EEO counselor that was
copied to A-1. In the email, the EEO counselor stated that Complainant
had filed an informal EEO complaint in which he alleged that he was
harassed by A-1 and requested remedies. The Commission found that the
only reasonable interpretation of A-1's November 15, 2006 email was that
it was motivated by Complainant's EEO activity. The Commission also
found that A-1 had entangled himself into Complainant's EEO activity
when he ordered Complainant to provide him with the notes he submitted
for an EEO investigation. There was no evidence that A-l's actions were
merely an unbiased attempt to assist with the investigation of C-l's
EEO complaint. Instead, by verbally sharing the notes with B-l, it is
clear that A-1 procured Complainant's notes and exposed its contents
in an effort to intimidate Complainant and interfere with an ongoing
EEO investigation. Thus, the Commission concluded that A-1 unlawfully
retaliated against Complainant by interfering with his EEO activity.
Consequently, the previous decision found that the AJ committed legal
error when she found that Complainant was not subjected to reprisal
because of his EEO activity.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency requests that
the Commission reconsider its decision because the alleged retaliatory
acts occurred within the context of litigation and as such, should not
be considered interference with Complainant's EEO activity. The Agency
also argues that further scrutiny of the record evidence shows that
forwarding an email was not a publication of Complainant's EEO activity
but simply a request for documentation to managers that had a need to
know of the forthcoming complaint.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that the Agency has not shown that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or that the appellate decision will have a substantial impact
on the policies, practices, or operations of the agency. The Commission
has long held that an employee may suffer unlawful retaliation if his
supervisor interferes with his EEO activity, as the previous decision
correctly found occurred in this case. See Binseel v. Depl. of the Army,
EEOC Request No. 05970584 (October 8, 1998); see also Marr v. Dept. of the
Air Force, EEOC Appeal No. 01941344 (June 27, 1996); Whidbee v. Dept. of
the Navy, EEOC Appeal No. 0120040193 (March 31, 2005).
In the instant case, the Agency characterizes the matters in claims
(1) and (4), as actions that were associated with litigation.
The supervisor's email, however, reads as a personal attack against
Complainant and does not appear to have been made in preparation for
litigation, as the email did not come from the Agency's attorney nor did
it come from anyone in the EEO office. This was a personal email from
Complainant's supervisor to other parties. Moreover, the supervisor's
email informs its recipients that Complainant was involved in the
EEO process. While the Agency has argued that the recipients of the
email had a need know this information, we find that the Agency has put
forth no evidence which demonstrates that these individuals had a need to
know or were directly involved in this matter. We find it reasonable to
conclude therefore that A-1 unlawfully retaliated against Complainant by
interfering with his EEO activity. Therefore, the Commission finds that
the Agency has not demonstrated that the appellate decision was clearly
erroneous. Accordingly, the decision in EEOC Appeal No. 0120082521
remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
The Agency shall comply with the Order as set forth below.
CONCLUSION
The Agency's request for reconsideration is hereby denied.
ORDER
The Agency is ordered to take the following remedial actions:
1. The Agency shall provide EEO training to all managers and
supervisors at the Agency's facilities in Las Vegas, Nevada. The training
shall place special emphasis on the Agency's obligation to prevent
retaliation and interference with the EEO process. The Commission does
not consider training to be a disciplinary action.
2. The Agency shall consider taking disciplinary action against
A-1, the responsible management official. The Agency shall report its
decision within thirty (30) calendar days. If the Agency decides to take
disciplinary action, it shall identify the actions taken. If the Agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
3. The Agency shall undertake a supplemental investigation to
determine Complainant's entitlement to compensatory damages under
Title VII. The Agency shall give Complainant notice of his right to
submit objective evidence (pursuant to the guidance given in Carle
v. Dept. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and
request objective evidence from Complainant in support of his request
for compensatory damages within forty-five (45) calendar days of the
date Complainant receives the Agency's notice. No later than ninety
(90) calendar days after the date that this decision becomes final,
the Agency shall issue a final agency decision addressing the issue of
compensatory damages. 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 below.
4. The Agency shall post the attached notice, as detailed below.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____2/18/11_____________
Date
1 With respect to claim (2), the previous decision found no prima facie
case of reprisal discrimination.
??
??
??
??
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409 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120151285.txt | 0120151285.txt | TXT | text/plain | 11,907 | February 13, 2015 | Appeal Number: 0120151285
Background:
At the time of events giving rise to this complaint, Complainant worked as a Social Work Intern at the Agency's facility in Biloxi, Mississippi.
On January 8, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and age. Complainant indicated that on June 13, 2014, she was informed that she would not be interviewed for the Inter-Professional Fellowship Program, Social Worker position.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The 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.
On October 10, 2014, four months after she learned she was not selected for an interview for the position in question, Complainant contacted the facility EEO manager for guidance on filing an EEO complaint.1 Complainant alleged that she had no reason to believe the decision not to interview her was discriminatory until, on July 18, 2014, she met with the Director of Training and learned that during the past six years there had never been a Black person chosen to be interviewed for the fellowship program. However, Complainant's October 10, 2014 contact with the facility EEO manager2 was still more than 45 days from the date of the July 18 meeting.
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.
Complainant concedes that her October 10, 2014 EEO contact was beyond the 45-day limitation period. However, she asserts that she did not initially believe the EEO complaint process was available to her as an intern. She explains that on August 15, 2014, she met with the Medical Center Director to raise her allegations of discrimination. He advised her to contact the facility EEO manager for information on her rights. The Director also asked Complainant to document their discussion and submit the documents to him. Complainant did so, and the Director turned the documents over to the facility EEO manager sometime in August 2014.
Under the unique facts of this case, we exercise our discretion to find adequate justification for extending the limitation period for seeking EEO counseling. 29 C.F.R. § 1614.604 (c). We are persuaded that, as an intern, Complainant was confused about whether or not the EEO complaint process was available to her. She did, however, contact the Medical Center Director within the 45-day limitation period from the July 18 meeting to raise her allegations of discrimination. He asked her to document her claims and turned over that documentation to the facility EEO manager shortly thereafter. There is no evidence, however, indicating that the facility EEO manager followed up with Complainant to advise her on what to do to pursue an EEO complaint until she contacted him on October 10. | Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151285
Agency No. 200305202015100326
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 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., 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 Social Work Intern at the Agency's facility in Biloxi, Mississippi.
On January 8, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and age. Complainant indicated that on June 13, 2014, she was informed that she would not be interviewed for the Inter-Professional Fellowship Program, Social Worker position.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. 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 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. 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.
On October 10, 2014, four months after she learned she was not selected for an interview for the position in question, Complainant contacted the facility EEO manager for guidance on filing an EEO complaint.1 Complainant alleged that she had no reason to believe the decision not to interview her was discriminatory until, on July 18, 2014, she met with the Director of Training and learned that during the past six years there had never been a Black person chosen to be interviewed for the fellowship program. However, Complainant's October 10, 2014 contact with the facility EEO manager2 was still more than 45 days from the date of the July 18 meeting.
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.
Complainant concedes that her October 10, 2014 EEO contact was beyond the 45-day limitation period. However, she asserts that she did not initially believe the EEO complaint process was available to her as an intern. She explains that on August 15, 2014, she met with the Medical Center Director to raise her allegations of discrimination. He advised her to contact the facility EEO manager for information on her rights. The Director also asked Complainant to document their discussion and submit the documents to him. Complainant did so, and the Director turned the documents over to the facility EEO manager sometime in August 2014.
Under the unique facts of this case, we exercise our discretion to find adequate justification for extending the limitation period for seeking EEO counseling. 29 C.F.R. § 1614.604 (c). We are persuaded that, as an intern, Complainant was confused about whether or not the EEO complaint process was available to her. She did, however, contact the Medical Center Director within the 45-day limitation period from the July 18 meeting to raise her allegations of discrimination. He asked her to document her claims and turned over that documentation to the facility EEO manager shortly thereafter. There is no evidence, however, indicating that the facility EEO manager followed up with Complainant to advise her on what to do to pursue an EEO complaint until she contacted him on October 10.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED as set forth below.
ORDER (E0610)
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 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 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
July 21, 2015
__________________
Date
1 The EEO manager referred Complainant to the Agency's ORM office to seek EEO counseling. Complainant contacted ORM on October 24, 2014.
2 We are not persuaded by the Agency's argument that the facility EEO manager was not an individual who was "logically connected" with the EEO complaint process for the purpose of establishing initial EEO counseling contact even though the actual responsibility for complaint processing lies with the Agency's centralized ORM office.
------------------------------------------------------------
------------------------------------------------------------
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410 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a00797.r.txt | 01a00797.r.txt | TXT | text/plain | 12,232 | October 20, 1999 | Appeal Number: 01A00797
Case Facts:
On October 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to 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. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
791 et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. §1614.405).
On May 27, 1999, complainant contacted the EEO office regarding claims
of discrimination. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on June 29, 1999, complainant filed a
formal complaint.
The agency framed the claims as follows:
a. On or about February 1999 complainant was reassigned/detailed
through forced light duty status to perform duties outside her position
description as an EEG technician;
b. On or about May 1997, complainant received an admonishment;
c. On or about August 19, 1997 to present date outstanding, complainant
was subjected to discrimination with respect to her assignment of duties;
d. With respect to duty hours, complainant was taken off 10 hour days,
no date given;
e. In the summer of 1997, the agency failed to promote complainant;
f. Complainant was subjected to harassment since her EEO case in 1993;
g. Complainant's performance appraisal went from an Outstanding to
Average just prior to the new system;
h. In September 1998, complainant was reassigned;
i. Complainant was subjected to sexual harassment since 1993;
j. In September or October 1997, complainant received a proposed
termination;
k. In 1996 and 1997, there was a lack of training; and,
l. From August 1997 to present, complainant was discriminated against
with respect to her working conditions.
On September 30, 1999, the agency issued a FAD dismissing the complaint
for untimely counselor contact. The agency determined that the most
recent incident for which a date was specifically identified occurred
between February 1 and February 28, 1999, at least 88 days prior to her
counselor contact. The agency noted that when complainant was asked
why she did not contact the EEO office earlier, complainant stated that
her claims were ongoing. As a result of complainant's statement, the
agency also conducted a continuing violation
Legal Analysis:
The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. §1614.405).
On May 27, 1999, complainant contacted the EEO office regarding claims
of discrimination. Informal efforts to resolve complainant's concerns
were unsuccessful.
Final Decision:
Accordingly, on June 29, 1999, complainant filed a formal complaint. The agency framed the claims as follows: a. On or about February 1999 complainant was reassigned/detailed through forced light duty status to perform duties outside her position description as an EEG technician; b. On or about May 1997, complainant received an admonishment; c. On or about August 19, 1997 to present date outstanding, complainant was subjected to discrimination with respect to her assignment of duties; d. With respect to duty hours, complainant was taken off 10 hour days, no date given; e. In the summer of 1997, the agency failed to promote complainant; f. Complainant was subjected to harassment since her EEO case in 1993; g. Complainant's performance appraisal went from an Outstanding to Average just prior to the new system; h. In September 1998, complainant was reassigned; i. Complainant was subjected to sexual harassment since 1993; j. In September or October 1997, complainant received a proposed termination; k. In 1996 and 1997, there was a lack of training; and, l. From August 1997 to present, complainant was discriminated against with respect to her working conditions. On September 30, 1999, the agency issued a FAD dismissing the complaint for untimely counselor contact. The agency determined that the most recent incident for which a date was specifically identified occurred between February 1 and February 28, 1999, at least 88 days prior to her counselor contact. The agency noted that when complainant was asked why she did not contact the EEO office earlier, complainant stated that her claims were ongoing. As a result of complainant's statement, the agency also conducted a continuing violation analysis. The FAD found no continuing violation, determining that none of complainant's claims were timely and that they were not interrelated. The agency also referred complainant to an EEO Counselor on three matters that complainant raised in an amended complaint. These matters addressed walls that were partially painted in complainant's room and left unfinished; schedule changes in an EEO hearing that caused complainant's representative to withdraw his representation of her; and the agency's purported failure to assign complainant to a work area after two agency employees recently resigned. On appeal, complainant contends that she is appealing the FAD on the basis that the EEOC has already accepted that my EEO problems are in fact on-going'. According to complainant, since she knows the discrimination will continue, she believes it is more efficient and less stressful to file her on-going complaints after there is an accumulation. 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 the instant case, the agency determined that all of complainant's claims were untimely raised, and that they are not part of a continuing violation. The Commission has held that the time requirement for contacting an EEO Counselor can be waived as to certain allegation within a complaint when the complainant alleges a continuing violation, that is, a series of related or discriminatory acts, or the maintenance of a discriminatory system or policy before and during the filing period. See McGiven v. USPS, EEOC Request No. 05901150 (December 28, 1990). If one or more of the acts falls within the forty-five day period for contacting an EEO Counselor, the complaint is timely with regard to all that constitute a continuing violation. See Valentino v. USPS, 674 F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC Request No. 05900700 (September 21, 1990). A determination of whether a series of discrete acts constitutes a continuing violation depends on the interrelatedness of the past and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). It is necessary to determine whether the acts are related by a common nexus or theme. See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981). Based on a review of the record, we find that complainant did not timely raise with the EEO counselor any instance of discrimination. In its final decision, the agency noted that some of the claims raised by complainant purportedly spanned several years preceding the initial EEO Counselor contact until the present. However, the Commission determines that the claims for which complainant has provided specific identifiable dates of discrimination occurred more than forty-five days prior to her initial EEO Counselor contact in May 1999. The record therefore reflects that none of the matters raised in the instant complaint were the subject of timely EEO counseling. Moreover, assuming arguendo, that some of complainant's claims occurred within forty-five days of the initial EEO contact date, complainant's untimely claims would nevertheless have failed to be part of a continuing violation. In some instances, the EEO contact was years after the alleged incident. Complainant knew or should have had a reasonable suspicion that she was the victim of unlawful discrimination at the time the alleged incidents occurred. While having a reasonable suspicion of discrimination does not preclude acceptance of the overall claim of ongoing discrimination, in the instant case, complainant acknowledged on appeal that because she anticipates ongoing incidents of discrimination, she finds it more expedient and less stressful to pursue the EEO complaint process after there is an accumulation. See Howard-Grayson v. USPS, EEOC Request No. 05900160 (December 3, 1999). The Commission, moreover, notes that complainant previously acknowledged that she took no immediate action after she suspected discrimination in a prior complaint. Mitchell v. USPS, EEOC Request No. 05960656 (January 5, 1998). Finally, the Commission determines that the agency properly referred complainant to an EEO Counselor for the three additional claims raised. The matters contained in the three amended claims were not raised with an EEO Counselor and are not like or related to matter for which complainant sought EEO counseling. Accordingly, the agency's decision dismissing the complaint was proper and is hereby AFFIRMED. | Sharon K. Mitchell, )
Complainant, )
)
v. )
) Appeal No. 01A00797
Togo D. West, Jr., ) Agency No. 99-2883
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to 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. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
791 et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. §1614.405).
On May 27, 1999, complainant contacted the EEO office regarding claims
of discrimination. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on June 29, 1999, complainant filed a
formal complaint.
The agency framed the claims as follows:
a. On or about February 1999 complainant was reassigned/detailed
through forced light duty status to perform duties outside her position
description as an EEG technician;
b. On or about May 1997, complainant received an admonishment;
c. On or about August 19, 1997 to present date outstanding, complainant
was subjected to discrimination with respect to her assignment of duties;
d. With respect to duty hours, complainant was taken off 10 hour days,
no date given;
e. In the summer of 1997, the agency failed to promote complainant;
f. Complainant was subjected to harassment since her EEO case in 1993;
g. Complainant's performance appraisal went from an Outstanding to
Average just prior to the new system;
h. In September 1998, complainant was reassigned;
i. Complainant was subjected to sexual harassment since 1993;
j. In September or October 1997, complainant received a proposed
termination;
k. In 1996 and 1997, there was a lack of training; and,
l. From August 1997 to present, complainant was discriminated against
with respect to her working conditions.
On September 30, 1999, the agency issued a FAD dismissing the complaint
for untimely counselor contact. The agency determined that the most
recent incident for which a date was specifically identified occurred
between February 1 and February 28, 1999, at least 88 days prior to her
counselor contact. The agency noted that when complainant was asked
why she did not contact the EEO office earlier, complainant stated that
her claims were ongoing. As a result of complainant's statement, the
agency also conducted a continuing violation analysis. The FAD found
no continuing violation, determining that none of complainant's claims
were timely and that they were not interrelated.
The agency also referred complainant to an EEO Counselor on three
matters that complainant raised in an amended complaint. These matters
addressed walls that were partially painted in complainant's room and left
unfinished; schedule changes in an EEO hearing that caused complainant's
representative to withdraw his representation of her; and the agency's
purported failure to assign complainant to a work area after two agency
employees recently resigned.
On appeal, complainant contends that she is appealing the FAD on the
basis that the EEOC has already accepted that my EEO problems are in fact
on-going'. According to complainant, since she knows the discrimination
will continue, she believes it is more efficient and less stressful to
file her on-going complaints after there is an accumulation.
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 the instant case, the agency determined that all of complainant's
claims were untimely raised, and that they are not part of a continuing
violation.
The Commission has held that the time requirement for contacting
an EEO Counselor can be waived as to certain allegation within a
complaint when the complainant alleges a continuing violation, that is,
a series of related or discriminatory acts, or the maintenance of a
discriminatory system or policy before and during the filing period.
See McGiven v. USPS, EEOC Request No. 05901150 (December 28, 1990).
If one or more of the acts falls within the forty-five day period for
contacting an EEO Counselor, the complaint is timely with regard to
all that constitute a continuing violation. See Valentino v. USPS, 674
F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990). A determination of whether
a series of discrete acts constitutes a continuing violation depends
on the interrelatedness of the past and present acts. Berry v. Board
of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). It is necessary
to determine whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
Based on a review of the record, we find that complainant did not timely
raise with the EEO counselor any instance of discrimination. In its final
decision, the agency noted that some of the claims raised by complainant
purportedly spanned several years preceding the initial EEO Counselor
contact until the present. However, the Commission determines that the
claims for which complainant has provided specific identifiable dates of
discrimination occurred more than forty-five days prior to her initial
EEO Counselor contact in May 1999. The record therefore reflects that
none of the matters raised in the instant complaint were the subject of
timely EEO counseling.
Moreover, assuming arguendo, that some of complainant's claims
occurred within forty-five days of the initial EEO contact date,
complainant's untimely claims would nevertheless have failed to be
part of a continuing violation. In some instances, the EEO contact
was years after the alleged incident. Complainant knew or should
have had a reasonable suspicion that she was the victim of unlawful
discrimination at the time the alleged incidents occurred. While having
a reasonable suspicion of discrimination does not preclude acceptance
of the overall claim of ongoing discrimination, in the instant case,
complainant acknowledged on appeal that because she anticipates
ongoing incidents of discrimination, she finds it more expedient and
less stressful to pursue the EEO complaint process after there is an
accumulation. See Howard-Grayson v. USPS, EEOC Request No. 05900160
(December 3, 1999). The Commission, moreover, notes that complainant
previously acknowledged that she took no immediate action after she
suspected discrimination in a prior complaint. Mitchell v. USPS,
EEOC Request No. 05960656 (January 5, 1998).
Finally, the Commission determines that the agency properly referred
complainant to an EEO Counselor for the three additional claims raised.
The matters contained in the three amended claims were not raised with an
EEO Counselor and are not like or related to matter for which complainant
sought EEO counseling.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. § 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 28, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"McGiven v. USPS, EEOC Request No. 05901150 (December 28, 1990)",
"Verkennes v. Department of Defense, EEOC Request No. 05900700 (September 21, 1990)",
"Grayson v. USPS, EEOC Request No. 05900160 (December 3, 1999)",
"Mitchel... | [
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411 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981615.txt | 01981615.txt | TXT | text/plain | 11,186 | February 19, 1999 | Appeal Number: 01981615
Case Facts:
Appellant filed the instant appeal from the agency's November 17, 1997
decision dismissing a portion of appellant's complaint (allegations (b) -
(l); all concerning nonselections) for failure to timely contact an EEO
Counselor.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 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 the record shows, that
appellant initially requested EEO counseling regarding the dismissed
allegations on July 17, 1997.
The Commission finds that the dismissed allegations are not timely under
the continuing violation theory because we find that appellant should
have reasonably suspected discrimination regarding the nonselections
(allegations (b) - (l)) at the time of the nonselections which were
all more than 45 days prior to appellant's initial contact of an EEO
Counselor.
On appeal appellant states that he was not notified of the time limits
to file a complaint. Appellant's argument can be characterized as a
claim that appellant was unaware of the time limits for contacting an EEO
Counselor until less than 45 days prior to contacting 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 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. 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)
- (l) 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 he
contacted an EEO Counselor.
The agency's decision dismissing allegations (b) - (l) is VACATED and
we REMAND allegations (b) - (l) 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 he 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) - (l) for investigation and/or issue a new decision dismissing
allegations (b) - (l). A copy of the letter accepting allegations (b) -
(l) and/or new decision dismissing allegations (b) - (l) 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. | Michael J. McKeown v. Department of Defense
01981615
February 19, 1999
Michael J. McKeown, )
Appellant, )
)
v. ) Appeal No. 01981615
) Agency No. TA-97-030
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's November 17, 1997
decision dismissing a portion of appellant's complaint (allegations (b) -
(l); all concerning nonselections) for failure to timely contact an EEO
Counselor.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 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 the record shows, that
appellant initially requested EEO counseling regarding the dismissed
allegations on July 17, 1997.
The Commission finds that the dismissed allegations are not timely under
the continuing violation theory because we find that appellant should
have reasonably suspected discrimination regarding the nonselections
(allegations (b) - (l)) at the time of the nonselections which were
all more than 45 days prior to appellant's initial contact of an EEO
Counselor.
On appeal appellant states that he was not notified of the time limits
to file a complaint. Appellant's argument can be characterized as a
claim that appellant was unaware of the time limits for contacting an EEO
Counselor until less than 45 days prior to contacting 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 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. 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)
- (l) 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 he
contacted an EEO Counselor.
The agency's decision dismissing allegations (b) - (l) is VACATED and
we REMAND allegations (b) - (l) 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 he 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) - (l) for investigation and/or issue a new decision dismissing
allegations (b) - (l). A copy of the letter accepting allegations (b) -
(l) and/or new decision dismissing allegations (b) - (l) must be sent
to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. §2000e-16© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Feb 19, 1999
DATE Ronnie Blumenthal, 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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-0.04596820846199989,
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0.0183947... | |
412 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A04729_r.txt | 01A04729_r.txt | TXT | text/plain | 10,240 | Deborah A. Lindamood v. Department of Agriculture 01A04729 November 6, 2001 . Deborah A. Lindamood, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency. | November 6, 2001 | Appeal Number: 01A04729
Legal Analysis:
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.
Final Decision:
Accordingly, the agency's dismissal of the complaint on the grounds of untimely EEO contact was improper and is REVERSED. | Deborah A. Lindamood v. Department of Agriculture
01A04729
November 6, 2001
.
Deborah A. Lindamood,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A04729
Agency No. 000056
DECISION
Complainant initiated contact with an EEO Counselor on April 7, 1999.
On September 29, 1999, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the bases of her
disability (severe depression) and sex (female) when she was terminated
from her position as an Accountant, GS-510-12, effective December 2,
1998.<1>
In its decision dated May 23, 2000, 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 was informed of her EEO rights on February 17, 1999, and
therefore, complainant's EEO contact on April 7, 1999, was four days
after the expiration of the 45-day limitation period for contacting
an EEO Counselor. The agency noted that the informal complaint was
initially closed after May 18, 1999, because the EEO Counselor was
unable to contact complainant. The agency stated that complainant did
not reinitiate contact with the EEO Counselor until June 1, 1999, which
was 104 days after she was informed of her EEO rights.
On appeal, complainant contends that she was unfamiliar with the EEO
process and the 45-day limitation period for contacting an EEO Counselor.
Complainant claims that she did not receive notice of her EEO rights
on February 17, 1999. Complainant argues that the date on the letter,
February 17, 1999, is not the date from which the 45-day limitation
period commences, but rather the date that she received the letter in
the mail, several days letter. Complainant also claims that the letter
advising her of her EEO rights referenced the 45-day period as when
complainant must file a discrimination complaint rather than the time
limit for contacting an EEO Counselor. Further, complainant maintains
that the 45-day limitation period should be extended due to her difficult
personal circumstances. Complainant states that her mother died in late
January 1999, and that subsequent to her death, she was preoccupied with
grief and depression.
We find that complainant's contact of an EEO Counselor on April 7,
1999, was within the 45-day limitation period. The record does not
establish when complainant received the letter from the Employee Relations
Specialist, dated February 17, 1999, informing her of her EEO rights.
The agency improperly commenced the running of the 45-day limitation
period from the date of the letter rather than when complainant received
the letter. The agency also has not refuted complainant's claim that
she was unaware of the 45-day limitation period prior to her receipt
of the letter. With regard to the agency's reference in its decision
to the approximate eight week period between complainant's initial
EEO contact and her next EEO contact, the agency has not established
that complainant failed to exercise due diligence in the pursuit of
her complaint. Accordingly, the agency's dismissal of the complaint
on the grounds of untimely EEO contact was improper and is REVERSED.
This complaint is hereby REMANDED pursuant to the Order set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
November 6, 2001
__________________
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
______________________________
1In its decision, the agency incorrectly stated that the bases of
discrimination were disability and age.
| [
"29 C.F.R. § 1614.108",
"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. §§ 791"
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-0.03749... |
413 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A03366.txt | 01A03366.txt | TXT | text/plain | 10,965 | Lisa Jayne v. Air Force 01A03366 April 13, 2001 . Lisa Jayne, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency. | April 13, 2001 | Appeal Number: 01A03366
Case Facts:
Based on a review of the record, we find that the agency improperly
dismissed complainant's complaint, pursuant to
Legal Analysis:
EEOC Regulation 29
C.F.R. § 1614.107(a)(2), for untimeliness. Complainant alleged that she
was subjected to discrimination on the basis of sex (female) when her
supervisor subjected her to a hostile work environment from September
1996 through May 1998. The appeal is accepted pursuant to 29 C.F.R. §
1614.405.
The final agency decision (FAD) dismissed complainant's complaint
for untimeliness finding that the agency's EEO Counselor contacted
complainant on September 17, 1999, regarding issues she had raised
with an EEO counselor in October 1996. Upon review of the record, the
Commission finds that complainant attempted to file a formal complaint
in 1996. However, complainant was informed by a Civilian Personnel
Office Representative (CPOR) who held herself out to be an EEO Counselor
that she needed to attempt mediation prior to filing a formal complaint.
Complainant was also told that once it was determined that mediation
failed, then the EEO office would proceed with her complaint. The record
indicates that complainant attempted mediation as she was instructed to
do so but also made contact with an EEO Counselor and filed an informal
complaint on November 13, 1996. At that time, both the CPOR and the EEO
Counselor told complainant that she could not file a formal complaint
without closure of the mediation sessions. As of December 13, 1996,
the CPOR failed to declare the sessions closed and provided complainant
with no recourse. On January 13, 1997, complainant met with the Facility
Commander to discuss her concerns with the EEO Office however no action
was taken. Thereafter, complainant contacted the agency's Inspector
General's Office Hotline concerning her EEO complaint. The Inspector
General's Office contacted the Chief EEO Counselor in September 1999,
requesting the EEO Office to investigate complainant's concerns.
The Chief EEO Counselor contacted complainant in order to determine
if complainant wanted to pursue her complaint in particular because
complainant left the agency on May 24, 1998. Complainant informed the
EEO Office of her desire to pursue her complaint. Complainant also
noted in her response that it was the alleged hostile work environment
which forced her to leave the agency.<1>
The Commission has previously held that an agency may not dismiss a
complaint based on a complainant's untimeliness, if that untimeliness
is caused by the agency's action in misleading or misinforming the
complainant. See Wilkinson v. United States Postal Service, EEOC Request
No. 05950205 (March 26, 1996). See also Elijah v. Department of the
Army, EEOC Request No. 05950632 (March 29, 1996) (if agency officials
misled complainant into waiting to initiate EEO counseling, an agency
must extend time limit for contacting EEO Counselor). Upon review of
the record, we find that the agency misled complainant and failed to
provide her with the correct information regarding the EEO process.
The Commission finds that the agency cannot dismiss her complaint for
untimeliness based on the agency's actions. | Lisa Jayne v. Air Force
01A03366
April 13, 2001
.
Lisa Jayne,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A03366
Agency No. AL900000433
DECISION
Based on a review of the record, we find that the agency improperly
dismissed complainant's complaint, pursuant to EEOC Regulation 29
C.F.R. § 1614.107(a)(2), for untimeliness. Complainant alleged that she
was subjected to discrimination on the basis of sex (female) when her
supervisor subjected her to a hostile work environment from September
1996 through May 1998. The appeal is accepted pursuant to 29 C.F.R. §
1614.405.
The final agency decision (FAD) dismissed complainant's complaint
for untimeliness finding that the agency's EEO Counselor contacted
complainant on September 17, 1999, regarding issues she had raised
with an EEO counselor in October 1996. Upon review of the record, the
Commission finds that complainant attempted to file a formal complaint
in 1996. However, complainant was informed by a Civilian Personnel
Office Representative (CPOR) who held herself out to be an EEO Counselor
that she needed to attempt mediation prior to filing a formal complaint.
Complainant was also told that once it was determined that mediation
failed, then the EEO office would proceed with her complaint. The record
indicates that complainant attempted mediation as she was instructed to
do so but also made contact with an EEO Counselor and filed an informal
complaint on November 13, 1996. At that time, both the CPOR and the EEO
Counselor told complainant that she could not file a formal complaint
without closure of the mediation sessions. As of December 13, 1996,
the CPOR failed to declare the sessions closed and provided complainant
with no recourse. On January 13, 1997, complainant met with the Facility
Commander to discuss her concerns with the EEO Office however no action
was taken. Thereafter, complainant contacted the agency's Inspector
General's Office Hotline concerning her EEO complaint. The Inspector
General's Office contacted the Chief EEO Counselor in September 1999,
requesting the EEO Office to investigate complainant's concerns.
The Chief EEO Counselor contacted complainant in order to determine
if complainant wanted to pursue her complaint in particular because
complainant left the agency on May 24, 1998. Complainant informed the
EEO Office of her desire to pursue her complaint. Complainant also
noted in her response that it was the alleged hostile work environment
which forced her to leave the agency.<1>
The Commission has previously held that an agency may not dismiss a
complaint based on a complainant's untimeliness, if that untimeliness
is caused by the agency's action in misleading or misinforming the
complainant. See Wilkinson v. United States Postal Service, EEOC Request
No. 05950205 (March 26, 1996). See also Elijah v. Department of the
Army, EEOC Request No. 05950632 (March 29, 1996) (if agency officials
misled complainant into waiting to initiate EEO counseling, an agency
must extend time limit for contacting EEO Counselor). Upon review of
the record, we find that the agency misled complainant and failed to
provide her with the correct information regarding the EEO process.
The Commission finds that the agency cannot dismiss her complaint for
untimeliness based on the agency's actions. Accordingly, the FAD is
REVERSED and the complaint is REMANDED for further processing.
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 (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. § 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. § 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 13, 2001
__________________
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
______________________________
1The Commission notes that if complainant wishes to pursue a complaint
based on a claim of constructive discharge, she should contact the
EEO Office within fifteen (15) days of receipt of this decision. The
Commission advises the agency that if complainant seeks EEO counseling
regarding the new claim within the fifteen (15) day period, the date
complainant filed the appeal statement in which she raised this claim
shall be deemed to be the date of the initial EEO contact, unless she
previously contacted a counselor regarding this matter, in which case
the earlier date would serve as the EEO Counselor contact date. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
| [
"Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (March 26, 1996)",
"Elijah v. Department of the Army, EEOC Request No. 05950632 (March 29, 1996)",
"Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.405",
"29 ... | [
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0.018124... |
414 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a03205.txt | 01a03205.txt | TXT | text/plain | 10,232 | July 10, 2000 | Appeal Number: 01A03205
Case Facts:
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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.,<1> the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq., and §501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. §791 et seq..<2> Accordingly, the appeal is accepted
in accordance with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at
29 C.F.R. § 1614.405).
BACKGROUND
Complainant contacted an EEO Counselor on May 27, 1997, and thereafter
filed a formal complaint on July 2, 1997, claiming discrimination based
on sex (female), age (DOB: 1/10/53), physical disability (weight, asthma),
and reprisal (prior EEO activity) citing various agency actions identified
as claims (1) through (8), occurring between September 20, 1995, and
July 1997.<3> The agency issued a final decision dismissing claim (1),
occurring between September 20, 1995, and September 17, 1996, and claim
(7), occurring in January 1997, for untimely EEO counselor contact.<4>
Complainant argued among other points in her appeal that the agency failed
to post information regarding the relevant time periods for contacting
an EEO counselor and that she was unaware of the 45 day time limit.
In a decision dated May 12, 1999, the Commission remanded claims (1) and
(7) to the agency for supplemental investigation of whether complainant
had actual or constructive notice of the time limit for contcting an
EEO counselor.
The agency subsequently conducted an investigation and issued a decision
dated February 25, 2000, finding that the two EEO counselors assigned to
complainant's work site, appointed in June 1996, both stated that copy's
of EEOC's Overview Chart outlining the EEO time-frames was always posted.
The agency therefore found that complainant had constructive knowledge of
the applicable time requirements regarding counselor contact, and failed
to contact an EEO counselor within 45 days of the events she claimed to
be discriminatory.
Complainant appealed arguing that the two people interviewed were not
EEO counselors for the agency in September 1995, or the first half of
1996, which was the time period when many of the actions complained of
occurred, and therefore, could not state whether the EEOC Overview Chart
was posted during that time. She also argues that even after information
was displayed in late 1996 or 1997, the display included only pictures
and names of the EEO counselors and not the Overview Chart.
In response, the agency argues that the Personnel Management Specialist,
who has served since March 1990, with responsibility for posting relevant
EEO information, stated that she has, over the years, consistently posting
information, including EEO counselor pictures, names and phone numbers
and the EEO Overview Chart. The agency notes that a memorandum from the
former Chief, Office of Equal Employment Opportunity, dated September
4, 1995, addressed to all EEO counselors, instructed the counselors
to permanently place an enclosed EEO Overview Chart on bulletin boards
located in areas accessible to all employees.<5>
FINDINGS AND
Legal Analysis:
the Commission remanded claims (1) and
(7) to the agency for supplemental investigation of whether complainant
had actual or constructive notice of the time limit for contcting an
EEO counselor.
The agency subsequently conducted an investigation and issued a decision
dated February 25, 2000, finding that the two EEO counselors assigned to
complainant's work site, appointed in June 1996, both stated that copy's
of EEOC's Overview Chart outlining the EEO time-frames was always posted.
The agency therefore found that complainant had constructive knowledge of
the applicable time requirements regarding counselor contact, and failed
to contact an EEO counselor within 45 days of the events she claimed to
be discriminatory.
Complainant appealed arguing that the two people interviewed were not
EEO counselors for the agency in September 1995, or the first half of
1996, which was the time period when many of the actions complained of
occurred, and therefore, could not state whether the EEOC Overview Chart
was posted during that time. She also argues that even after information
was displayed in late 1996 or 1997, the display included only pictures
and names of the EEO counselors and not the Overview Chart.
In response, the agency argues that the Personnel Management Specialist,
who has served since March 1990, with responsibility for posting relevant
EEO information, stated that she has, over the years, consistently posting
information, including EEO counselor pictures, names and phone numbers
and the EEO Overview Chart. The agency notes that a memorandum from the
former Chief, Office of Equal Employment Opportunity, dated September
4, 1995, addressed to all EEO counselors, instructed the counselors
to permanently place an enclosed EEO Overview Chart on bulletin boards
located in areas accessible to all employees.<5>
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.195(a)(1) requires that a complaint of
discrimination should 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 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.
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, 1993) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The agency has demonstrated that the EEO Overview Chart was posted
during the relevant time periods. Therefore, the Commission finds that
complainant's claims are properly dismissed for failure to contact an
EEO counselor within 45 days of the alleged discriminatory event.
Final Decision:
Accordingly, the appeal is accepted in accordance with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. § 1614.405). BACKGROUND Complainant contacted an EEO Counselor on May 27, 1997, and thereafter filed a formal complaint on July 2, 1997, claiming discrimination based on sex (female), age (DOB: 1/10/53), physical disability (weight, asthma), and reprisal (prior EEO activity) citing various agency actions identified as claims (1) through (8), occurring between September 20, 1995, and July 1997.<3> The agency issued a final decision dismissing claim (1), occurring between September 20, 1995, and September 17, 1996, and claim (7), occurring in January 1997, for untimely EEO counselor contact.<4> Complainant argued among other points in her appeal that the agency failed to post information regarding the relevant time periods for contacting an EEO counselor and that she was unaware of the 45 day time limit. In a decision dated May 12, 1999, the Commission remanded claims (1) and (7) to the agency for supplemental investigation of whether complainant had actual or constructive notice of the time limit for contcting an EEO counselor. The agency subsequently conducted an investigation and issued a decision dated February 25, 2000, finding that the two EEO counselors assigned to complainant's work site, appointed in June 1996, both stated that copy's of EEOC's Overview Chart outlining the EEO time-frames was always posted. The agency therefore found that complainant had constructive knowledge of the applicable time requirements regarding counselor contact, and failed to contact an EEO counselor within 45 days of the events she claimed to be discriminatory. Complainant appealed arguing that the two people interviewed were not EEO counselors for the agency in September 1995, or the first half of 1996, which was the time period when many of the actions complained of occurred, and therefore, could not state whether the EEOC Overview Chart was posted during that time. She also argues that even after information was displayed in late 1996 or 1997, the display included only pictures and names of the EEO counselors and not the Overview Chart. In response, the agency argues that the Personnel Management Specialist, who has served since March 1990, with responsibility for posting relevant EEO information, stated that she has, over the years, consistently posting information, including EEO counselor pictures, names and phone numbers and the EEO Overview Chart. The agency notes that a memorandum from the former Chief, Office of Equal Employment Opportunity, dated September 4, 1995, addressed to all EEO counselors, instructed the counselors to permanently place an enclosed EEO Overview Chart on bulletin boards located in areas accessible to all employees.<5> FINDINGS AND ANALYSIS EEOC Regulation 29 C.F.R. § 1614.195(a)(1) requires that a complaint of discrimination should 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 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. 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, 1993) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746 (1st Cir. 1988). The agency has demonstrated that the EEO Overview Chart was posted during the relevant time periods. Therefore, the Commission finds that complainant's claims are properly dismissed for failure to contact an EEO counselor within 45 days of the alleged discriminatory event. CONCLUSION Accordingly, the decision of the agency is AFFIRMED. | Arla M. Gaines v. Small Business Administration
01A03205
July 10, 2000
Arla M. Gaines, )
Complainant, )
) Appeal No. 01A03205
) Agency No. 07-97-615
)
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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.,<1> the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq., and §501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. §791 et seq..<2> Accordingly, the appeal is accepted
in accordance with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at
29 C.F.R. § 1614.405).
BACKGROUND
Complainant contacted an EEO Counselor on May 27, 1997, and thereafter
filed a formal complaint on July 2, 1997, claiming discrimination based
on sex (female), age (DOB: 1/10/53), physical disability (weight, asthma),
and reprisal (prior EEO activity) citing various agency actions identified
as claims (1) through (8), occurring between September 20, 1995, and
July 1997.<3> The agency issued a final decision dismissing claim (1),
occurring between September 20, 1995, and September 17, 1996, and claim
(7), occurring in January 1997, for untimely EEO counselor contact.<4>
Complainant argued among other points in her appeal that the agency failed
to post information regarding the relevant time periods for contacting
an EEO counselor and that she was unaware of the 45 day time limit.
In a decision dated May 12, 1999, the Commission remanded claims (1) and
(7) to the agency for supplemental investigation of whether complainant
had actual or constructive notice of the time limit for contcting an
EEO counselor.
The agency subsequently conducted an investigation and issued a decision
dated February 25, 2000, finding that the two EEO counselors assigned to
complainant's work site, appointed in June 1996, both stated that copy's
of EEOC's Overview Chart outlining the EEO time-frames was always posted.
The agency therefore found that complainant had constructive knowledge of
the applicable time requirements regarding counselor contact, and failed
to contact an EEO counselor within 45 days of the events she claimed to
be discriminatory.
Complainant appealed arguing that the two people interviewed were not
EEO counselors for the agency in September 1995, or the first half of
1996, which was the time period when many of the actions complained of
occurred, and therefore, could not state whether the EEOC Overview Chart
was posted during that time. She also argues that even after information
was displayed in late 1996 or 1997, the display included only pictures
and names of the EEO counselors and not the Overview Chart.
In response, the agency argues that the Personnel Management Specialist,
who has served since March 1990, with responsibility for posting relevant
EEO information, stated that she has, over the years, consistently posting
information, including EEO counselor pictures, names and phone numbers
and the EEO Overview Chart. The agency notes that a memorandum from the
former Chief, Office of Equal Employment Opportunity, dated September
4, 1995, addressed to all EEO counselors, instructed the counselors
to permanently place an enclosed EEO Overview Chart on bulletin boards
located in areas accessible to all employees.<5>
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.195(a)(1) requires that a complaint of
discrimination should 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 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.
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, 1993) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The agency has demonstrated that the EEO Overview Chart was posted
during the relevant time periods. Therefore, the Commission finds that
complainant's claims are properly dismissed for failure to contact an
EEO counselor within 45 days of the alleged discriminatory event.
CONCLUSION
Accordingly, the decision of the agency 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 10, 2000
________________________ ______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
3The agency determined that complainant contacted an EEO counselor on
November 19, 1996, because complainant filed an MSPB appeal on that date
which was subsequently dismissed for lack of jurisdiction.
4The agency dismissed claims (2) through (6) and (8) for failure to
state a claim.
5The record includes a copy of the memorandum. | [
"Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1993)",
"861 F.2d 746",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.195(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. § 621",
"29 U.S.C. §§ 79... | [
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415 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102212%20Cooley%20v%20DHS.txt | 0120102212%20Cooley%20v%20DHS.txt | TXT | text/plain | 11,689 | Darlene Cooley, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. | April 15, 2010 | Appeal Number: 0120102212
Background:
Complainant formerly worked as an Adjudication Officer at the Agency's California Service Center facility in Laguna Niguel, CA.
On November 21, 2007, the Agency issued Complainant a Notice of Removal. Complainant contacted an EEO Counselor on November 14, 2007, stating that she believed her removal was on the basis of her race (African-American).
After being notified of her options to process her mixed case, Complainant elected to pursue her removal with the Merit Systems Protection Board (MSPB) on November 27, 2007. Complainant did not allege discrimination in her petition to the MSPB. On February 20, 2008, the MSPB Administrative Judge (AJ) conducted a hearing, and on March 28, 2008, the MSPB AJ issued an Initial Decision upholding the removal. On August 18, 2008, the MSPB issued a Final Order denying Complainant's petition for review of the Initial Decision. On April 7, 2009, the United States Court of Appeal for the Federal Circuit affirmed the MSPB's decision.
On or about October 16, 2009, Complainant contacted an EEO counselor for alleged class discrimination based upon race (African-American). On December 23, 2009, Complainant filed a formal complaint "individually and on the behalf of a class of African-American employees" alleging that the Agency discriminated against African-American Adjudication Officers within the California Service Center facility when it terminated them and denied them promotional opportunities.
On December 28, 2009, the Agency submitted the formal complaint to the EEOC and requested that an EEOC Administrative Judge (AJ) be assigned to issue a decision on whether to certify or dismiss the class complaint. On April 2, 2010, the AJ dismissed the complaint. The AJ found that Complainant's EEO counselor contact was untimely, as she contacted an EEO counselor more than two years after she was terminated. The AJ also found that the complaint should be dismissed because Complainant elected to pursue her termination claim through the MSPB process. Finally, the AJ found that even if the Complaint was not dismissed for those reasons, the potential class likely does not meet the numerosity requirement to be certified as a class.
On April 15, 2010, the Agency accepted the dismissal of the complaint.1 Complainant now appeals to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her complaint should not be dismissed. Complainant contends that she did not know that she was waiving her EEO rights, and the EEO counselor told her that she did not have an EEO case. Complainant also contends that the complaint should not be dismissed for untimely EEO counselor contact because the doctrine of equitable tolling should be applied in this case. In opposition to the appeal, the Agency contends that the AJ was correct in dismissing the complaint because Complainant has already raised her removal before the MSPB, and because she contacted an EEO counselor more than two years after removal.
Legal Analysis:
the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her complaint should not be dismissed. Complainant contends that she did not know that she was waiving her EEO rights, and the EEO counselor told her that she did not have an EEO case. Complainant also contends that the complaint should not be dismissed for untimely EEO counselor contact because the doctrine of equitable tolling should be applied in this case. In opposition to the appeal, the Agency contends that the AJ was correct in dismissing the complaint because Complainant has already raised her removal before the MSPB, and because she contacted an EEO counselor more than two years after removal.
ANALYSIS AND FINDINGS
EEOC regulations at 29 C.F.R. § 1614.204 provide for the processing of class complaints of discrimination. 29 C.F.R. § 1614.204(d)(2) provide that the AJ may dismiss the complaint for any reason listed in 29 C.F.R. § 1614.107.
A mixed case complaint is a complaint of employment discrimination filed with a federal Agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an Agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that a complaint shall be dismissed where the Complainant has raised the matter in an appeal to the MSPB, and 29 C.F.R. § 1614.302 indicates that a Complainant has elected to purse the non-EEO process.
Here, the evidence of the record is clear that Complainant, who was represented by an attorney, elected to pursue her removal with the MSPB process instead of the EEO process. Complainant filed a petition to the MSPB regarding her removal, participated in an MSPB hearing, received an Initial Decision from a MSPB AJ, and received an MSPB Final Order denying her petition for review of the Initial Decision. Further, the United States Court of Appeal for the Federal Circuit affirmed the MSPB's decision.
Complainant contends that her claim should not be dismissed because she was not aware that she was waiving her right to the EEO process when she filed her MSPB petition, therefore her waiver was not knowingly. We have previously held that ignorance of the law is not a sufficient reason to waive the procedural requirements in our regulations. See Baker v. Dep't of Army, EEOC Appeal No. 0120112039 (January 12, 2012) (The waiver of the filing deadline will not be waived because of Complainant's ignorance of the law); Wood v. Secretary of the Navy, EEOC Request No. 05901196 (April 10, 1991) (Noting the distinction between ignorance of the law and ignorance of relevant facts, the Commission did not excuse the untimely filing, reasoning that the Complainant had a duty to undertake reasonable efforts to ascertain his legal rights). Complainant failed to established that her lack of knowledge that she was waiving her right to the EEO process when she elected to pursue the MSPB process is sufficient to warrant a waiver of our regulations.
Complainant also contends that she pursued the MSPB process because the EEO counselor misled her when she was told that she did not have an EEO case. However, a review of the record does not support Complainant's contentions. The record establishes that the EEO counselor provided Complainant with information about the mixed case process and her option to pursue her removal with the MSPB, and encouraged Complainant to discuss her options with her attorney, who was experienced in federal sector employment law. The counselor also informed Complainant of her right to file an EEO complaint after informal counseling was unsuccessful. There is nothing in the record that would support Complainant's assertion that she should now be able to pursue her removal in the EEO process, even though she already pursued the same removal in the MSPB process. Therefore, we affirm the dismissal of this complaint.2 | Darlene Cooley,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120102212
Hearing No. 480-2010-00226X
Agency No. HS10CIS000703
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 15, 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.
BACKGROUND
Complainant formerly worked as an Adjudication Officer at the Agency's California Service Center facility in Laguna Niguel, CA.
On November 21, 2007, the Agency issued Complainant a Notice of Removal. Complainant contacted an EEO Counselor on November 14, 2007, stating that she believed her removal was on the basis of her race (African-American).
After being notified of her options to process her mixed case, Complainant elected to pursue her removal with the Merit Systems Protection Board (MSPB) on November 27, 2007. Complainant did not allege discrimination in her petition to the MSPB. On February 20, 2008, the MSPB Administrative Judge (AJ) conducted a hearing, and on March 28, 2008, the MSPB AJ issued an Initial Decision upholding the removal. On August 18, 2008, the MSPB issued a Final Order denying Complainant's petition for review of the Initial Decision. On April 7, 2009, the United States Court of Appeal for the Federal Circuit affirmed the MSPB's decision.
On or about October 16, 2009, Complainant contacted an EEO counselor for alleged class discrimination based upon race (African-American). On December 23, 2009, Complainant filed a formal complaint "individually and on the behalf of a class of African-American employees" alleging that the Agency discriminated against African-American Adjudication Officers within the California Service Center facility when it terminated them and denied them promotional opportunities.
On December 28, 2009, the Agency submitted the formal complaint to the EEOC and requested that an EEOC Administrative Judge (AJ) be assigned to issue a decision on whether to certify or dismiss the class complaint. On April 2, 2010, the AJ dismissed the complaint. The AJ found that Complainant's EEO counselor contact was untimely, as she contacted an EEO counselor more than two years after she was terminated. The AJ also found that the complaint should be dismissed because Complainant elected to pursue her termination claim through the MSPB process. Finally, the AJ found that even if the Complaint was not dismissed for those reasons, the potential class likely does not meet the numerosity requirement to be certified as a class.
On April 15, 2010, the Agency accepted the dismissal of the complaint.1 Complainant now appeals to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her complaint should not be dismissed. Complainant contends that she did not know that she was waiving her EEO rights, and the EEO counselor told her that she did not have an EEO case. Complainant also contends that the complaint should not be dismissed for untimely EEO counselor contact because the doctrine of equitable tolling should be applied in this case. In opposition to the appeal, the Agency contends that the AJ was correct in dismissing the complaint because Complainant has already raised her removal before the MSPB, and because she contacted an EEO counselor more than two years after removal.
ANALYSIS AND FINDINGS
EEOC regulations at 29 C.F.R. § 1614.204 provide for the processing of class complaints of discrimination. 29 C.F.R. § 1614.204(d)(2) provide that the AJ may dismiss the complaint for any reason listed in 29 C.F.R. § 1614.107.
A mixed case complaint is a complaint of employment discrimination filed with a federal Agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an Agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that a complaint shall be dismissed where the Complainant has raised the matter in an appeal to the MSPB, and 29 C.F.R. § 1614.302 indicates that a Complainant has elected to purse the non-EEO process.
Here, the evidence of the record is clear that Complainant, who was represented by an attorney, elected to pursue her removal with the MSPB process instead of the EEO process. Complainant filed a petition to the MSPB regarding her removal, participated in an MSPB hearing, received an Initial Decision from a MSPB AJ, and received an MSPB Final Order denying her petition for review of the Initial Decision. Further, the United States Court of Appeal for the Federal Circuit affirmed the MSPB's decision.
Complainant contends that her claim should not be dismissed because she was not aware that she was waiving her right to the EEO process when she filed her MSPB petition, therefore her waiver was not knowingly. We have previously held that ignorance of the law is not a sufficient reason to waive the procedural requirements in our regulations. See Baker v. Dep't of Army, EEOC Appeal No. 0120112039 (January 12, 2012) (The waiver of the filing deadline will not be waived because of Complainant's ignorance of the law); Wood v. Secretary of the Navy, EEOC Request No. 05901196 (April 10, 1991) (Noting the distinction between ignorance of the law and ignorance of relevant facts, the Commission did not excuse the untimely filing, reasoning that the Complainant had a duty to undertake reasonable efforts to ascertain his legal rights). Complainant failed to established that her lack of knowledge that she was waiving her right to the EEO process when she elected to pursue the MSPB process is sufficient to warrant a waiver of our regulations.
Complainant also contends that she pursued the MSPB process because the EEO counselor misled her when she was told that she did not have an EEO case. However, a review of the record does not support Complainant's contentions. The record establishes that the EEO counselor provided Complainant with information about the mixed case process and her option to pursue her removal with the MSPB, and encouraged Complainant to discuss her options with her attorney, who was experienced in federal sector employment law. The counselor also informed Complainant of her right to file an EEO complaint after informal counseling was unsuccessful. There is nothing in the record that would support Complainant's assertion that she should now be able to pursue her removal in the EEO process, even though she already pursued the same removal in the MSPB process. Therefore, we affirm the dismissal of this complaint.2
CONCLUSION
After a thorough review of the record, including those issues not specifically addressed in this appeal, we affirm the dismissal of this 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
05/24/2012
__________________
Date
1 We note that in the final decision the Agency erroneously stated that on January 28, 2010, the AJ certified the class. The document the Agency is referring to is the Acknowledgment and Order for Class Certification, which simply acknowledges that the complaint was received, explains the requirements for class certification, and gives other pertinent information regarding the process to the parties. The class in this complaint was never certified.
2 Since we are affirming the dismissal of the complaint for raising the same matter on appeal with the MSPB, we do not need to address the issues of untimely EEO counselor contact or the numerosity of the class complaint.
------------------------------------------------------------
------------------------------------------------------------
| [
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"29 C.F.R. § 1614.204(d)",
"29 C.F.R. § 1614.107",
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"5 C.F.R. § 1201.151",
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416 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120114019.txt | 0120114019.txt | TXT | text/plain | 12,998 | Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | June 8, 1999 | Appeal Number: s
Complaint Allegations:
In his complaints, Complainant alleged that he was subjected to discrimination on the bases of national origin (born in Russia), age (55), and in reprisal for prior protected EEO activity (arising under Title VII and the ADEA) when he was not referred or selected for various positions within the agency.
Background:
At the time of events giving rise to this complaint, Complainant was a
former employee of the Agency. Prior to March 2010, Complainant worked as
a scientist at the Agencyâs Naval Surface Warfare Center in Carderock,
Maryland. In his complaints, Complainant alleged that he was subjected
to discrimination on the bases of national origin (born in Russia), age
(55), and in reprisal for prior protected EEO activity (arising under
Title VII and the ADEA) when he was not referred or selected for various
positions within the agency.
The Agency dismissed the claims on various grounds including that
Complainant abused the EEO process in filing the complaints because
he repeatedly filed similar or identical allegations of non-selection
and applied for positions for which he was unqualified. The Agency
explained that Complainant had been removed by the Agency, and yet he
continued to apply for positions within the agency that are reserved
for current employees.
Legal Analysis:
EEOC Regulations state that an agency shall dismiss a
complaint where it clearly evidences a clear pattern of misuse of the
EEO process for ends other than that which it was designed to accomplish.
See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)
(citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18,
1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved, or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
As a policy, the Commission aims at preserving a complainant's EEO rights
whenever possible; thus, we rarely permit dismissal of a complaint
on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal
No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission,
Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4
(rev. Nov. 19, 1999). Given this policy and our concern about protecting
complainants and their rights under the EEO statutes, the agency bears a
very high standard of proof ultimately to show that complainant's actions
reveal âan ulterior purpose to abuse or misuse the EEO process.â
MD-110 at Ch. 5, § IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal.
The agency must show evidence that somehow in filing numerous complaints
a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't
of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse
of process in the case of a complainant who filed over 40 complaints,
but where the record did not show that he did so for any other reason
than to put an end to alleged discrimination) with Abell v. Dep't of
Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of
process where complainant filed 40 complaints of non-selection with no
intention to take the job). See also, Stoyanov v. Depât of the Navy,
EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006)
(finding abuse of process where complainant filed 25 complaints over
non-selections where complainant was ineligible for positions for which
he applied). Therefore, the focus of the analysis is on the totality
of the individual's claims, circumstances, and intentions.
We are satisfied that the Agency has established that the complaints
now before us are part of a pattern of abuse perpetrated by Complainant
to punish the Agency by burdening the EEO system despite knowing that
the complaints he filed were meritless. Complainant has filed over 50
administrative EEO complaints with the Agency. The clearest indication
that Complainantâs objective in filing his numerous EEO complaints
was to vex the Agency rather than vindicate his rights under the EEO
laws is his recent practice of applying for positions for which he
knows he is unqualified. Complainantâs employment with the Agency
was terminated effective March 31, 2010.1 On at least 17 occasions
since then, he has applied for positions with the Agency for which
non-employees were ineligible. In each of those 17 cases, when he
was rejected as not qualified, as he inevitably was, he filed an EEO
complaint which the Agency dismissed, inter alia, as an abuse of process.
In each case, he appealed the dismissal to the Commission.
The bulk of Complainant's EEO complaints following his removal in
March 2010 involve allegations of discriminatory non-selections.
Complainant continues to argue before us that his removal was wrongful
and that based on his personal belief, he remains a current employee.
Moreover, despite knowing he was not qualified for the positions he sought
because they were open only to current employees, he applied anyway.
He knew he could not be referred for an interview or selected due to
his non-employee status, and he even went so far as to misrepresent
himself as an employee on his job applications. Agency officials have
warned Complainant that they know of his false applications and would
not consider him unless his employment status changes. Complainant,
however, disregarded the warnings and filed EEO complaints each time he
received notice of his non-selection. Based on these facts we conclude
that his only objective in applying for these positions was to then file
futile EEO claims against the Agency.
In essence, Complainant aimed to use the EEO process to retaliate
against the Agency and its officials for his removal and perceived
unjust treatment. This is not the purpose for which the process is
to be used. The EEO process serves to prevent and eliminate workplace
discrimination; it is not to be used as a means to carry out a personal
grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440
(June 11, 1998) (finding abuse of process where complainant developed
a pattern of âinitiating the complaint machinery with respect to any
matter with which complainant was dissatisfiedâ).
In fact, Complainant's actions are similar to those of the complainant
in Fisher v. Depât of Defense, EEOC Request No. 05970326 (Dec. 11,
1998), where we also found abuse of process. There, Mr. Fisher filed
twenty-one complaints. Mr. Fisher was dissatisfied with his failure
to obtain relief for his removal from agency employment through the
administrative process, so he filed the EEO complaints alleging, for the
most part, that the agency improperly handled his official time requests
and complaint processing. We concluded that certain of his remarks
made during the processing; his failure to cooperate with investigators,
EEO officials and the AJ; and his insistence on filing separate appeals
on related issues that should have been consolidated all revealed an
intention to misuse the EEO process to retaliate against agency officials.
Like Mr. Fisher, Complainant here refused to cooperate with agency
officials in correcting the false information he supplied on his job
applications and attempted to use the administrative process to strike
back at the Agency. As in Fisher, we will neither permit Complainant
to utilize the EEO process to circumvent administrative processes in
this manner, nor allow him to overburden the system, which is designed
to protect individuals from discriminatory practices. In this regard,
we note that we have previously affirmed the Agencyâs dismissals of
Complainantâs complaints in Stoyanov v. Depât of the Navy, EEOC
Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011). | 
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120113142
Agency Nos. 11-00167-02195
11-00167-02835
11-00167-03192
DECISION
Complainant filed timely appeals with this Commission from various final
agency decisions, dismissing his complaints 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. We consolidate these appeals for joint processing pursuant
to 29 C.F.R. § 1614.606.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
former employee of the Agency. Prior to March 2010, Complainant worked as
a scientist at the Agencyâs Naval Surface Warfare Center in Carderock,
Maryland. In his complaints, Complainant alleged that he was subjected
to discrimination on the bases of national origin (born in Russia), age
(55), and in reprisal for prior protected EEO activity (arising under
Title VII and the ADEA) when he was not referred or selected for various
positions within the agency.
The Agency dismissed the claims on various grounds including that
Complainant abused the EEO process in filing the complaints because
he repeatedly filed similar or identical allegations of non-selection
and applied for positions for which he was unqualified. The Agency
explained that Complainant had been removed by the Agency, and yet he
continued to apply for positions within the agency that are reserved
for current employees.
ANALYSIS AND FINDINGS
We note that EEOC Regulations state that an agency shall dismiss a
complaint where it clearly evidences a clear pattern of misuse of the
EEO process for ends other than that which it was designed to accomplish.
See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)
(citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18,
1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved, or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
As a policy, the Commission aims at preserving a complainant's EEO rights
whenever possible; thus, we rarely permit dismissal of a complaint
on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal
No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission,
Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4
(rev. Nov. 19, 1999). Given this policy and our concern about protecting
complainants and their rights under the EEO statutes, the agency bears a
very high standard of proof ultimately to show that complainant's actions
reveal âan ulterior purpose to abuse or misuse the EEO process.â
MD-110 at Ch. 5, § IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal.
The agency must show evidence that somehow in filing numerous complaints
a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't
of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse
of process in the case of a complainant who filed over 40 complaints,
but where the record did not show that he did so for any other reason
than to put an end to alleged discrimination) with Abell v. Dep't of
Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of
process where complainant filed 40 complaints of non-selection with no
intention to take the job). See also, Stoyanov v. Depât of the Navy,
EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006)
(finding abuse of process where complainant filed 25 complaints over
non-selections where complainant was ineligible for positions for which
he applied). Therefore, the focus of the analysis is on the totality
of the individual's claims, circumstances, and intentions.
We are satisfied that the Agency has established that the complaints
now before us are part of a pattern of abuse perpetrated by Complainant
to punish the Agency by burdening the EEO system despite knowing that
the complaints he filed were meritless. Complainant has filed over 50
administrative EEO complaints with the Agency. The clearest indication
that Complainantâs objective in filing his numerous EEO complaints
was to vex the Agency rather than vindicate his rights under the EEO
laws is his recent practice of applying for positions for which he
knows he is unqualified. Complainantâs employment with the Agency
was terminated effective March 31, 2010.1 On at least 17 occasions
since then, he has applied for positions with the Agency for which
non-employees were ineligible. In each of those 17 cases, when he
was rejected as not qualified, as he inevitably was, he filed an EEO
complaint which the Agency dismissed, inter alia, as an abuse of process.
In each case, he appealed the dismissal to the Commission.
The bulk of Complainant's EEO complaints following his removal in
March 2010 involve allegations of discriminatory non-selections.
Complainant continues to argue before us that his removal was wrongful
and that based on his personal belief, he remains a current employee.
Moreover, despite knowing he was not qualified for the positions he sought
because they were open only to current employees, he applied anyway.
He knew he could not be referred for an interview or selected due to
his non-employee status, and he even went so far as to misrepresent
himself as an employee on his job applications. Agency officials have
warned Complainant that they know of his false applications and would
not consider him unless his employment status changes. Complainant,
however, disregarded the warnings and filed EEO complaints each time he
received notice of his non-selection. Based on these facts we conclude
that his only objective in applying for these positions was to then file
futile EEO claims against the Agency.
In essence, Complainant aimed to use the EEO process to retaliate
against the Agency and its officials for his removal and perceived
unjust treatment. This is not the purpose for which the process is
to be used. The EEO process serves to prevent and eliminate workplace
discrimination; it is not to be used as a means to carry out a personal
grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440
(June 11, 1998) (finding abuse of process where complainant developed
a pattern of âinitiating the complaint machinery with respect to any
matter with which complainant was dissatisfiedâ).
In fact, Complainant's actions are similar to those of the complainant
in Fisher v. Depât of Defense, EEOC Request No. 05970326 (Dec. 11,
1998), where we also found abuse of process. There, Mr. Fisher filed
twenty-one complaints. Mr. Fisher was dissatisfied with his failure
to obtain relief for his removal from agency employment through the
administrative process, so he filed the EEO complaints alleging, for the
most part, that the agency improperly handled his official time requests
and complaint processing. We concluded that certain of his remarks
made during the processing; his failure to cooperate with investigators,
EEO officials and the AJ; and his insistence on filing separate appeals
on related issues that should have been consolidated all revealed an
intention to misuse the EEO process to retaliate against agency officials.
Like Mr. Fisher, Complainant here refused to cooperate with agency
officials in correcting the false information he supplied on his job
applications and attempted to use the administrative process to strike
back at the Agency. As in Fisher, we will neither permit Complainant
to utilize the EEO process to circumvent administrative processes in
this manner, nor allow him to overburden the system, which is designed
to protect individuals from discriminatory practices. In this regard,
we note that we have previously affirmed the Agencyâs dismissals of
Complainantâs complaints in Stoyanov v. Depât of the Navy, EEOC
Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011).
CONCLUSION
In light of the foregoing, and upon review of the case files as well
as all arguments raised on appeal, we AFFIRM the Agency's decisions
dismissing the complaints.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another partyâs timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANTâS RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. âAgencyâ or âdepartmentâ means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (âRight to File a Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 6, 2011
Date
1 His removal has since been upheld by the Merit Systems Protection Board
(MSPB) in Stoyanov v. Depât of the Navy, MSPB No. DC-0752-10-0472-I-1
(Jan. 4, 2011), petition for review denied (Aug. 8, 2011).
------------------------------------------------------------
------------------------------------------------------------
0120113142, 0120113817, 0120114019 | [
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"Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18, 1985)",
"Kessinger v. U.S. Postal Serv., EEOC Appeal No. 01976399 (June 8, 1999)",
"Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440 (June 11, 1998)",
"Fisher v. Dep... | [
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0.03537211939692497,
0.078... |
417 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120113817.txt | 0120113817.txt | TXT | text/plain | 12,998 | Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | June 8, 1999 | Appeal Number: s
Complaint Allegations:
In his complaints, Complainant alleged that he was subjected to discrimination on the bases of national origin (born in Russia), age (55), and in reprisal for prior protected EEO activity (arising under Title VII and the ADEA) when he was not referred or selected for various positions within the agency.
Background:
At the time of events giving rise to this complaint, Complainant was a
former employee of the Agency. Prior to March 2010, Complainant worked as
a scientist at the Agencyâs Naval Surface Warfare Center in Carderock,
Maryland. In his complaints, Complainant alleged that he was subjected
to discrimination on the bases of national origin (born in Russia), age
(55), and in reprisal for prior protected EEO activity (arising under
Title VII and the ADEA) when he was not referred or selected for various
positions within the agency.
The Agency dismissed the claims on various grounds including that
Complainant abused the EEO process in filing the complaints because
he repeatedly filed similar or identical allegations of non-selection
and applied for positions for which he was unqualified. The Agency
explained that Complainant had been removed by the Agency, and yet he
continued to apply for positions within the agency that are reserved
for current employees.
Legal Analysis:
EEOC Regulations state that an agency shall dismiss a
complaint where it clearly evidences a clear pattern of misuse of the
EEO process for ends other than that which it was designed to accomplish.
See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)
(citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18,
1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved, or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
As a policy, the Commission aims at preserving a complainant's EEO rights
whenever possible; thus, we rarely permit dismissal of a complaint
on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal
No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission,
Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4
(rev. Nov. 19, 1999). Given this policy and our concern about protecting
complainants and their rights under the EEO statutes, the agency bears a
very high standard of proof ultimately to show that complainant's actions
reveal âan ulterior purpose to abuse or misuse the EEO process.â
MD-110 at Ch. 5, § IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal.
The agency must show evidence that somehow in filing numerous complaints
a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't
of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse
of process in the case of a complainant who filed over 40 complaints,
but where the record did not show that he did so for any other reason
than to put an end to alleged discrimination) with Abell v. Dep't of
Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of
process where complainant filed 40 complaints of non-selection with no
intention to take the job). See also, Stoyanov v. Depât of the Navy,
EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006)
(finding abuse of process where complainant filed 25 complaints over
non-selections where complainant was ineligible for positions for which
he applied). Therefore, the focus of the analysis is on the totality
of the individual's claims, circumstances, and intentions.
We are satisfied that the Agency has established that the complaints
now before us are part of a pattern of abuse perpetrated by Complainant
to punish the Agency by burdening the EEO system despite knowing that
the complaints he filed were meritless. Complainant has filed over 50
administrative EEO complaints with the Agency. The clearest indication
that Complainantâs objective in filing his numerous EEO complaints
was to vex the Agency rather than vindicate his rights under the EEO
laws is his recent practice of applying for positions for which he
knows he is unqualified. Complainantâs employment with the Agency
was terminated effective March 31, 2010.1 On at least 17 occasions
since then, he has applied for positions with the Agency for which
non-employees were ineligible. In each of those 17 cases, when he
was rejected as not qualified, as he inevitably was, he filed an EEO
complaint which the Agency dismissed, inter alia, as an abuse of process.
In each case, he appealed the dismissal to the Commission.
The bulk of Complainant's EEO complaints following his removal in
March 2010 involve allegations of discriminatory non-selections.
Complainant continues to argue before us that his removal was wrongful
and that based on his personal belief, he remains a current employee.
Moreover, despite knowing he was not qualified for the positions he sought
because they were open only to current employees, he applied anyway.
He knew he could not be referred for an interview or selected due to
his non-employee status, and he even went so far as to misrepresent
himself as an employee on his job applications. Agency officials have
warned Complainant that they know of his false applications and would
not consider him unless his employment status changes. Complainant,
however, disregarded the warnings and filed EEO complaints each time he
received notice of his non-selection. Based on these facts we conclude
that his only objective in applying for these positions was to then file
futile EEO claims against the Agency.
In essence, Complainant aimed to use the EEO process to retaliate
against the Agency and its officials for his removal and perceived
unjust treatment. This is not the purpose for which the process is
to be used. The EEO process serves to prevent and eliminate workplace
discrimination; it is not to be used as a means to carry out a personal
grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440
(June 11, 1998) (finding abuse of process where complainant developed
a pattern of âinitiating the complaint machinery with respect to any
matter with which complainant was dissatisfiedâ).
In fact, Complainant's actions are similar to those of the complainant
in Fisher v. Depât of Defense, EEOC Request No. 05970326 (Dec. 11,
1998), where we also found abuse of process. There, Mr. Fisher filed
twenty-one complaints. Mr. Fisher was dissatisfied with his failure
to obtain relief for his removal from agency employment through the
administrative process, so he filed the EEO complaints alleging, for the
most part, that the agency improperly handled his official time requests
and complaint processing. We concluded that certain of his remarks
made during the processing; his failure to cooperate with investigators,
EEO officials and the AJ; and his insistence on filing separate appeals
on related issues that should have been consolidated all revealed an
intention to misuse the EEO process to retaliate against agency officials.
Like Mr. Fisher, Complainant here refused to cooperate with agency
officials in correcting the false information he supplied on his job
applications and attempted to use the administrative process to strike
back at the Agency. As in Fisher, we will neither permit Complainant
to utilize the EEO process to circumvent administrative processes in
this manner, nor allow him to overburden the system, which is designed
to protect individuals from discriminatory practices. In this regard,
we note that we have previously affirmed the Agencyâs dismissals of
Complainantâs complaints in Stoyanov v. Depât of the Navy, EEOC
Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011). | 
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120113142
Agency Nos. 11-00167-02195
11-00167-02835
11-00167-03192
DECISION
Complainant filed timely appeals with this Commission from various final
agency decisions, dismissing his complaints 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. We consolidate these appeals for joint processing pursuant
to 29 C.F.R. § 1614.606.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
former employee of the Agency. Prior to March 2010, Complainant worked as
a scientist at the Agencyâs Naval Surface Warfare Center in Carderock,
Maryland. In his complaints, Complainant alleged that he was subjected
to discrimination on the bases of national origin (born in Russia), age
(55), and in reprisal for prior protected EEO activity (arising under
Title VII and the ADEA) when he was not referred or selected for various
positions within the agency.
The Agency dismissed the claims on various grounds including that
Complainant abused the EEO process in filing the complaints because
he repeatedly filed similar or identical allegations of non-selection
and applied for positions for which he was unqualified. The Agency
explained that Complainant had been removed by the Agency, and yet he
continued to apply for positions within the agency that are reserved
for current employees.
ANALYSIS AND FINDINGS
We note that EEOC Regulations state that an agency shall dismiss a
complaint where it clearly evidences a clear pattern of misuse of the
EEO process for ends other than that which it was designed to accomplish.
See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)
(citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18,
1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved, or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
As a policy, the Commission aims at preserving a complainant's EEO rights
whenever possible; thus, we rarely permit dismissal of a complaint
on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal
No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission,
Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4
(rev. Nov. 19, 1999). Given this policy and our concern about protecting
complainants and their rights under the EEO statutes, the agency bears a
very high standard of proof ultimately to show that complainant's actions
reveal âan ulterior purpose to abuse or misuse the EEO process.â
MD-110 at Ch. 5, § IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal.
The agency must show evidence that somehow in filing numerous complaints
a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't
of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse
of process in the case of a complainant who filed over 40 complaints,
but where the record did not show that he did so for any other reason
than to put an end to alleged discrimination) with Abell v. Dep't of
Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of
process where complainant filed 40 complaints of non-selection with no
intention to take the job). See also, Stoyanov v. Depât of the Navy,
EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006)
(finding abuse of process where complainant filed 25 complaints over
non-selections where complainant was ineligible for positions for which
he applied). Therefore, the focus of the analysis is on the totality
of the individual's claims, circumstances, and intentions.
We are satisfied that the Agency has established that the complaints
now before us are part of a pattern of abuse perpetrated by Complainant
to punish the Agency by burdening the EEO system despite knowing that
the complaints he filed were meritless. Complainant has filed over 50
administrative EEO complaints with the Agency. The clearest indication
that Complainantâs objective in filing his numerous EEO complaints
was to vex the Agency rather than vindicate his rights under the EEO
laws is his recent practice of applying for positions for which he
knows he is unqualified. Complainantâs employment with the Agency
was terminated effective March 31, 2010.1 On at least 17 occasions
since then, he has applied for positions with the Agency for which
non-employees were ineligible. In each of those 17 cases, when he
was rejected as not qualified, as he inevitably was, he filed an EEO
complaint which the Agency dismissed, inter alia, as an abuse of process.
In each case, he appealed the dismissal to the Commission.
The bulk of Complainant's EEO complaints following his removal in
March 2010 involve allegations of discriminatory non-selections.
Complainant continues to argue before us that his removal was wrongful
and that based on his personal belief, he remains a current employee.
Moreover, despite knowing he was not qualified for the positions he sought
because they were open only to current employees, he applied anyway.
He knew he could not be referred for an interview or selected due to
his non-employee status, and he even went so far as to misrepresent
himself as an employee on his job applications. Agency officials have
warned Complainant that they know of his false applications and would
not consider him unless his employment status changes. Complainant,
however, disregarded the warnings and filed EEO complaints each time he
received notice of his non-selection. Based on these facts we conclude
that his only objective in applying for these positions was to then file
futile EEO claims against the Agency.
In essence, Complainant aimed to use the EEO process to retaliate
against the Agency and its officials for his removal and perceived
unjust treatment. This is not the purpose for which the process is
to be used. The EEO process serves to prevent and eliminate workplace
discrimination; it is not to be used as a means to carry out a personal
grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440
(June 11, 1998) (finding abuse of process where complainant developed
a pattern of âinitiating the complaint machinery with respect to any
matter with which complainant was dissatisfiedâ).
In fact, Complainant's actions are similar to those of the complainant
in Fisher v. Depât of Defense, EEOC Request No. 05970326 (Dec. 11,
1998), where we also found abuse of process. There, Mr. Fisher filed
twenty-one complaints. Mr. Fisher was dissatisfied with his failure
to obtain relief for his removal from agency employment through the
administrative process, so he filed the EEO complaints alleging, for the
most part, that the agency improperly handled his official time requests
and complaint processing. We concluded that certain of his remarks
made during the processing; his failure to cooperate with investigators,
EEO officials and the AJ; and his insistence on filing separate appeals
on related issues that should have been consolidated all revealed an
intention to misuse the EEO process to retaliate against agency officials.
Like Mr. Fisher, Complainant here refused to cooperate with agency
officials in correcting the false information he supplied on his job
applications and attempted to use the administrative process to strike
back at the Agency. As in Fisher, we will neither permit Complainant
to utilize the EEO process to circumvent administrative processes in
this manner, nor allow him to overburden the system, which is designed
to protect individuals from discriminatory practices. In this regard,
we note that we have previously affirmed the Agencyâs dismissals of
Complainantâs complaints in Stoyanov v. Depât of the Navy, EEOC
Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011).
CONCLUSION
In light of the foregoing, and upon review of the case files as well
as all arguments raised on appeal, we AFFIRM the Agency's decisions
dismissing the complaints.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another partyâs timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANTâS RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. âAgencyâ or âdepartmentâ means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (âRight to File a Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 6, 2011
Date
1 His removal has since been upheld by the Merit Systems Protection Board
(MSPB) in Stoyanov v. Depât of the Navy, MSPB No. DC-0752-10-0472-I-1
(Jan. 4, 2011), petition for review denied (Aug. 8, 2011).
------------------------------------------------------------
------------------------------------------------------------
0120113142, 0120113817, 0120114019 | [
"Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)",
"Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18, 1985)",
"Kessinger v. U.S. Postal Serv., EEOC Appeal No. 01976399 (June 8, 1999)",
"Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440 (June 11, 1998)",
"Fisher v. Dep... | [
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418 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120113142.txt | 0120113142.txt | TXT | text/plain | 12,998 | Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | June 8, 1999 | Appeal Number: s
Complaint Allegations:
In his complaints, Complainant alleged that he was subjected to discrimination on the bases of national origin (born in Russia), age (55), and in reprisal for prior protected EEO activity (arising under Title VII and the ADEA) when he was not referred or selected for various positions within the agency.
Background:
At the time of events giving rise to this complaint, Complainant was a
former employee of the Agency. Prior to March 2010, Complainant worked as
a scientist at the Agencyâs Naval Surface Warfare Center in Carderock,
Maryland. In his complaints, Complainant alleged that he was subjected
to discrimination on the bases of national origin (born in Russia), age
(55), and in reprisal for prior protected EEO activity (arising under
Title VII and the ADEA) when he was not referred or selected for various
positions within the agency.
The Agency dismissed the claims on various grounds including that
Complainant abused the EEO process in filing the complaints because
he repeatedly filed similar or identical allegations of non-selection
and applied for positions for which he was unqualified. The Agency
explained that Complainant had been removed by the Agency, and yet he
continued to apply for positions within the agency that are reserved
for current employees.
Legal Analysis:
EEOC Regulations state that an agency shall dismiss a
complaint where it clearly evidences a clear pattern of misuse of the
EEO process for ends other than that which it was designed to accomplish.
See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)
(citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18,
1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved, or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
As a policy, the Commission aims at preserving a complainant's EEO rights
whenever possible; thus, we rarely permit dismissal of a complaint
on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal
No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission,
Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4
(rev. Nov. 19, 1999). Given this policy and our concern about protecting
complainants and their rights under the EEO statutes, the agency bears a
very high standard of proof ultimately to show that complainant's actions
reveal âan ulterior purpose to abuse or misuse the EEO process.â
MD-110 at Ch. 5, § IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal.
The agency must show evidence that somehow in filing numerous complaints
a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't
of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse
of process in the case of a complainant who filed over 40 complaints,
but where the record did not show that he did so for any other reason
than to put an end to alleged discrimination) with Abell v. Dep't of
Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of
process where complainant filed 40 complaints of non-selection with no
intention to take the job). See also, Stoyanov v. Depât of the Navy,
EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006)
(finding abuse of process where complainant filed 25 complaints over
non-selections where complainant was ineligible for positions for which
he applied). Therefore, the focus of the analysis is on the totality
of the individual's claims, circumstances, and intentions.
We are satisfied that the Agency has established that the complaints
now before us are part of a pattern of abuse perpetrated by Complainant
to punish the Agency by burdening the EEO system despite knowing that
the complaints he filed were meritless. Complainant has filed over 50
administrative EEO complaints with the Agency. The clearest indication
that Complainantâs objective in filing his numerous EEO complaints
was to vex the Agency rather than vindicate his rights under the EEO
laws is his recent practice of applying for positions for which he
knows he is unqualified. Complainantâs employment with the Agency
was terminated effective March 31, 2010.1 On at least 17 occasions
since then, he has applied for positions with the Agency for which
non-employees were ineligible. In each of those 17 cases, when he
was rejected as not qualified, as he inevitably was, he filed an EEO
complaint which the Agency dismissed, inter alia, as an abuse of process.
In each case, he appealed the dismissal to the Commission.
The bulk of Complainant's EEO complaints following his removal in
March 2010 involve allegations of discriminatory non-selections.
Complainant continues to argue before us that his removal was wrongful
and that based on his personal belief, he remains a current employee.
Moreover, despite knowing he was not qualified for the positions he sought
because they were open only to current employees, he applied anyway.
He knew he could not be referred for an interview or selected due to
his non-employee status, and he even went so far as to misrepresent
himself as an employee on his job applications. Agency officials have
warned Complainant that they know of his false applications and would
not consider him unless his employment status changes. Complainant,
however, disregarded the warnings and filed EEO complaints each time he
received notice of his non-selection. Based on these facts we conclude
that his only objective in applying for these positions was to then file
futile EEO claims against the Agency.
In essence, Complainant aimed to use the EEO process to retaliate
against the Agency and its officials for his removal and perceived
unjust treatment. This is not the purpose for which the process is
to be used. The EEO process serves to prevent and eliminate workplace
discrimination; it is not to be used as a means to carry out a personal
grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440
(June 11, 1998) (finding abuse of process where complainant developed
a pattern of âinitiating the complaint machinery with respect to any
matter with which complainant was dissatisfiedâ).
In fact, Complainant's actions are similar to those of the complainant
in Fisher v. Depât of Defense, EEOC Request No. 05970326 (Dec. 11,
1998), where we also found abuse of process. There, Mr. Fisher filed
twenty-one complaints. Mr. Fisher was dissatisfied with his failure
to obtain relief for his removal from agency employment through the
administrative process, so he filed the EEO complaints alleging, for the
most part, that the agency improperly handled his official time requests
and complaint processing. We concluded that certain of his remarks
made during the processing; his failure to cooperate with investigators,
EEO officials and the AJ; and his insistence on filing separate appeals
on related issues that should have been consolidated all revealed an
intention to misuse the EEO process to retaliate against agency officials.
Like Mr. Fisher, Complainant here refused to cooperate with agency
officials in correcting the false information he supplied on his job
applications and attempted to use the administrative process to strike
back at the Agency. As in Fisher, we will neither permit Complainant
to utilize the EEO process to circumvent administrative processes in
this manner, nor allow him to overburden the system, which is designed
to protect individuals from discriminatory practices. In this regard,
we note that we have previously affirmed the Agencyâs dismissals of
Complainantâs complaints in Stoyanov v. Depât of the Navy, EEOC
Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011). | 
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120113142
Agency Nos. 11-00167-02195
11-00167-02835
11-00167-03192
DECISION
Complainant filed timely appeals with this Commission from various final
agency decisions, dismissing his complaints 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. We consolidate these appeals for joint processing pursuant
to 29 C.F.R. § 1614.606.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
former employee of the Agency. Prior to March 2010, Complainant worked as
a scientist at the Agencyâs Naval Surface Warfare Center in Carderock,
Maryland. In his complaints, Complainant alleged that he was subjected
to discrimination on the bases of national origin (born in Russia), age
(55), and in reprisal for prior protected EEO activity (arising under
Title VII and the ADEA) when he was not referred or selected for various
positions within the agency.
The Agency dismissed the claims on various grounds including that
Complainant abused the EEO process in filing the complaints because
he repeatedly filed similar or identical allegations of non-selection
and applied for positions for which he was unqualified. The Agency
explained that Complainant had been removed by the Agency, and yet he
continued to apply for positions within the agency that are reserved
for current employees.
ANALYSIS AND FINDINGS
We note that EEOC Regulations state that an agency shall dismiss a
complaint where it clearly evidences a clear pattern of misuse of the
EEO process for ends other than that which it was designed to accomplish.
See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)
(citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18,
1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved, or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
As a policy, the Commission aims at preserving a complainant's EEO rights
whenever possible; thus, we rarely permit dismissal of a complaint
on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal
No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission,
Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4
(rev. Nov. 19, 1999). Given this policy and our concern about protecting
complainants and their rights under the EEO statutes, the agency bears a
very high standard of proof ultimately to show that complainant's actions
reveal âan ulterior purpose to abuse or misuse the EEO process.â
MD-110 at Ch. 5, § IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal.
The agency must show evidence that somehow in filing numerous complaints
a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't
of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse
of process in the case of a complainant who filed over 40 complaints,
but where the record did not show that he did so for any other reason
than to put an end to alleged discrimination) with Abell v. Dep't of
Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of
process where complainant filed 40 complaints of non-selection with no
intention to take the job). See also, Stoyanov v. Depât of the Navy,
EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006)
(finding abuse of process where complainant filed 25 complaints over
non-selections where complainant was ineligible for positions for which
he applied). Therefore, the focus of the analysis is on the totality
of the individual's claims, circumstances, and intentions.
We are satisfied that the Agency has established that the complaints
now before us are part of a pattern of abuse perpetrated by Complainant
to punish the Agency by burdening the EEO system despite knowing that
the complaints he filed were meritless. Complainant has filed over 50
administrative EEO complaints with the Agency. The clearest indication
that Complainantâs objective in filing his numerous EEO complaints
was to vex the Agency rather than vindicate his rights under the EEO
laws is his recent practice of applying for positions for which he
knows he is unqualified. Complainantâs employment with the Agency
was terminated effective March 31, 2010.1 On at least 17 occasions
since then, he has applied for positions with the Agency for which
non-employees were ineligible. In each of those 17 cases, when he
was rejected as not qualified, as he inevitably was, he filed an EEO
complaint which the Agency dismissed, inter alia, as an abuse of process.
In each case, he appealed the dismissal to the Commission.
The bulk of Complainant's EEO complaints following his removal in
March 2010 involve allegations of discriminatory non-selections.
Complainant continues to argue before us that his removal was wrongful
and that based on his personal belief, he remains a current employee.
Moreover, despite knowing he was not qualified for the positions he sought
because they were open only to current employees, he applied anyway.
He knew he could not be referred for an interview or selected due to
his non-employee status, and he even went so far as to misrepresent
himself as an employee on his job applications. Agency officials have
warned Complainant that they know of his false applications and would
not consider him unless his employment status changes. Complainant,
however, disregarded the warnings and filed EEO complaints each time he
received notice of his non-selection. Based on these facts we conclude
that his only objective in applying for these positions was to then file
futile EEO claims against the Agency.
In essence, Complainant aimed to use the EEO process to retaliate
against the Agency and its officials for his removal and perceived
unjust treatment. This is not the purpose for which the process is
to be used. The EEO process serves to prevent and eliminate workplace
discrimination; it is not to be used as a means to carry out a personal
grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440
(June 11, 1998) (finding abuse of process where complainant developed
a pattern of âinitiating the complaint machinery with respect to any
matter with which complainant was dissatisfiedâ).
In fact, Complainant's actions are similar to those of the complainant
in Fisher v. Depât of Defense, EEOC Request No. 05970326 (Dec. 11,
1998), where we also found abuse of process. There, Mr. Fisher filed
twenty-one complaints. Mr. Fisher was dissatisfied with his failure
to obtain relief for his removal from agency employment through the
administrative process, so he filed the EEO complaints alleging, for the
most part, that the agency improperly handled his official time requests
and complaint processing. We concluded that certain of his remarks
made during the processing; his failure to cooperate with investigators,
EEO officials and the AJ; and his insistence on filing separate appeals
on related issues that should have been consolidated all revealed an
intention to misuse the EEO process to retaliate against agency officials.
Like Mr. Fisher, Complainant here refused to cooperate with agency
officials in correcting the false information he supplied on his job
applications and attempted to use the administrative process to strike
back at the Agency. As in Fisher, we will neither permit Complainant
to utilize the EEO process to circumvent administrative processes in
this manner, nor allow him to overburden the system, which is designed
to protect individuals from discriminatory practices. In this regard,
we note that we have previously affirmed the Agencyâs dismissals of
Complainantâs complaints in Stoyanov v. Depât of the Navy, EEOC
Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011).
CONCLUSION
In light of the foregoing, and upon review of the case files as well
as all arguments raised on appeal, we AFFIRM the Agency's decisions
dismissing the complaints.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another partyâs timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANTâS RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. âAgencyâ or âdepartmentâ means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (âRight to File a Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 6, 2011
Date
1 His removal has since been upheld by the Merit Systems Protection Board
(MSPB) in Stoyanov v. Depât of the Navy, MSPB No. DC-0752-10-0472-I-1
(Jan. 4, 2011), petition for review denied (Aug. 8, 2011).
------------------------------------------------------------
------------------------------------------------------------
0120113142, 0120113817, 0120114019 | [
"Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)",
"Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18, 1985)",
"Kessinger v. U.S. Postal Serv., EEOC Appeal No. 01976399 (June 8, 1999)",
"Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440 (June 11, 1998)",
"Fisher v. Dep... | [
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419 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120092700.txt | 0120092700.txt | TXT | text/plain | 15,364 | Katherine J. Stewart, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. | April 30, 2009 | Appeal Number: 0120092700
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the bases of sex (female), age (50 years at time of incidents), and reprisal for prior protected EEO activity under a statute that was unspecified in the record when: 1. on January 22, 2009, complainant was notified of the transfer of her position from the Netherlands to Scott Air Force Base, Illinois; 2. complainant received a rating of 3.1 instead of a 5 for the rating period from October 2007 through September 2008; 3. the agency changed complainant's rating official for Fiscal Year 2009; and 4. in March 2009, management made the decision to remove a Paralegal Specialist from complainant's location to Headquarters. In its decision issued on April 30, 2009, the agency dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(5) on the grounds that it was a proposed action. The agency also found that complainant's EEO counselor contact was untimely. The agency dismissed the remaining three claims for failure to state a claim on the grounds that complainant was not harmed by the agency's actions. In brief, on appeal complainant argues that, as regards claim 1, the action is not a proposed action and was timely raised. As regards claim 2, complainant argues that a lowered rating, especially one that results in lower compensation, as is the case here, does result in harm and hence states a claim. As regards claim 3, complainant argues that she is harmed because her new rating official is located in a different country, and as regards claim 4, the loss of the paralegal hampered complainant's ability to perform her duties. We note initially that complainant has claimed reprisal as a basis of discrimination. The FAD found that complainant had not engaged in protected EEO activity. The FAD states: your allegation of reprisal for participation in 'EEO offenses' does not constitute EEO reprisal. . . . you participated in an Article 15-6 with EEO-related activity. An Article 15-6 does not qualify for EEO reprisal. EEO reprisal must be in direct relation to participation in an EEO activity such as filing an EEO complaint or participating as a witness in an EEO complaint. FAD. p.2.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 30, 2009, 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.
At the time of the events at issue, complainant was employed by the agency
as the Command Judge Advocate (attorney) for the 598th Transportation
Group, the Netherlands (598th NL). In her complaint, complainant alleged
that she was subjected to discrimination on the bases of sex (female),
age (50 years at time of incidents), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. on January 22, 2009, complainant was notified of the transfer of her
position from the Netherlands to Scott Air Force Base, Illinois;
2. complainant received a rating of 3.1 instead of a 5 for the rating
period from October 2007 through September 2008;
3. the agency changed complainant's rating official for Fiscal Year 2009;
and
4. in March 2009, management made the decision to remove a Paralegal
Specialist from complainant's location to Headquarters.
In its decision issued on April 30, 2009, the agency dismissed claim
1 pursuant to 29 C.F.R. § 1614.107(a)(5) on the grounds that it was a
proposed action. The agency also found that complainant's EEO counselor
contact was untimely. The agency dismissed the remaining three claims
for failure to state a claim on the grounds that complainant was not
harmed by the agency's actions.
In brief, on appeal complainant argues that, as regards claim 1, the
action is not a proposed action and was timely raised. As regards
claim 2, complainant argues that a lowered rating, especially one that
results in lower compensation, as is the case here, does result in harm
and hence states a claim. As regards claim 3, complainant argues that
she is harmed because her new rating official is located in a different
country, and as regards claim 4, the loss of the paralegal hampered
complainant's ability to perform her duties.
We note initially that complainant has claimed reprisal as a basis
of discrimination. The FAD found that complainant had not engaged in
protected EEO activity. The FAD states:
your allegation of reprisal for participation in 'EEO offenses' does
not constitute EEO reprisal. . . . you participated in an Article
15-6 with EEO-related activity. An Article 15-6 does not qualify for
EEO reprisal. EEO reprisal must be in direct relation to participation
in an EEO activity such as filing an EEO complaint or participating as
a witness in an EEO complaint. FAD. p.2.
The agency has not explained what an "Article 15-6" is or why
participation in such an action does not "qualify for EEO reprisal." Id.
The Commission has held that protected EEO activity includes opposition to
a practice made unlawful by one of the EEO statutes, and participation
in EEO activity, such as filing a charge, testifying, assisting,
or participating in any manner in an investigation, proceeding, or
hearing under the applicable statute, including testifying or presenting
evidence as part of an internal investigation pertaining to an alleged
EEO violation. See EEOC Compliance Manual, Section 2 - Threshold Issues,
No. 915.003 (May 12, 2000), at 2-14. In her Appeal Brief, complainant
argues that she "participated in an Army Regulation 15-6 Investigation
into EEO offences," Complainant's Appeal Brief, p. 5, that consisted of:
an investigation into complaints by individuals challenging employment
discrimination . . .. That participation included a) a close association
with the two individuals who first brought the charges to light and who
testified in that investigation; b) the rendering of a legal opinion
relating to this investigation; and c) administrative support of the
Investigating Officer. Id.
The Commission finds that the type of activity described by complainant
falls under the definition of protected EEO activity.
As regards claim 1, we find initially that complainant's EEO counselor
contact was not untimely. The agency found that complainant was notified
of the transfer/reassignment in June 2008, but did not contact an EEO
counselor until March 24, 2009. The record contains a Memorandum
to complainant, dated June 2, 2008, notifying her of the transfer
and stating that the transfer would be effective September 1, 2008.
It is clear, however, that no such transfer occurred on that date and
there is no evidence showing complainant has been transferred to date.
Any complaint about the June 2008 notice, therefore, would be moot.
Complainant argues on appeal that her complaint does not refer to the
June 2008 notice, but rather to a second transfer notice she received
on January 22, 2009, which states that the transfer will be effective
June 6, 2010. Given these factors, we find that the date of the alleged
action was January 22, 2009.
The FAD states that complainant did not contact an EEO counselor until
March 24, 2009. A review of the EEO counselor's report, however,
shows that complainant's first counselor contact was on February 24,
2009, and complainant has submitted copies of e-mails showing that she
attempted to contact a counselor prior to February 24, 2009, but no one
would pick up the telephone. Accordingly, we find that complainant's
EEO counselor contact was timely.
The agency also found that the action was a proposed action. Complainant
argues that the action is not a proposed action because it does not
propose or suggest that her position will be transferred, but "instead it
clearly instructs me of the decision , . . that my position will transfer
on a specific date." Complainant's Appeal Brief, p. 2. Following a
review of the record, we find that the action is a final, not proposed,
action that takes effect in the future. The record shows that a final
decision was made in January 2009 to transfer complainant on a specified
future date. Furthermore, the agency gave complainant until January
29, 2009 to accept the job offer at Scott Air Force Base or lose it.
Finally, we note that complainant is alleging reprisal. The Commission
has a policy of considering reprisal claims with a broad view of coverage.
See Carroll v. Department of the Army, EEOC Request No. 05970939 (April
4, 2000). Under Commission policy, claimed retaliatory actions which
can be challenged are not restricted to those which affect a term or
condition of employment. Rather, a complainant is protected from any
discrimination that is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May
20, 1998), at 8-15; see also Carroll, supra. Given these factors, we
find that being notified of a transfer to a workplace thousands of miles
away is an action that is reasonably likely to deter protected activity.
Accordingly we find that the agency erred in dismissing claim 1.
As regards claim 2, the Commission has consistently found that, even
when a lowered evaluation does not result in any change in compensation,
it states a valid claim. In the instant complaint, complainant argues
that her lowered evaluation also resulted in a loss of compensation.
Accordingly, we find that complainant has shown a present harm or loss
with respect to a term, condition, or privilege of employment and hence
states a valid claim. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
As regards claims 3 and 4, we note that the agency analyzed these claims
using the Diaz
Legal Analysis:
The Commission has held that protected EEO activity includes opposition to
a practice made unlawful by one of the EEO statutes, and participation
in EEO activity, such as filing a charge, testifying, assisting,
or participating in any manner in an investigation, proceeding, or
hearing under the applicable statute, including testifying or presenting
evidence as part of an internal investigation pertaining to an alleged
EEO violation. See EEOC Compliance Manual, Section 2 - Threshold Issues,
No. 915.003 (May 12, 2000), at 2-14. In her Appeal Brief, complainant
argues that she "participated in an Army Regulation 15-6 Investigation
into EEO offences," Complainant's Appeal Brief, p. 5, that consisted of:
an investigation into complaints by individuals challenging employment
discrimination . . .. That participation included a) a close association
with the two individuals who first brought the charges to light and who
testified in that investigation; b) the rendering of a legal opinion
relating to this investigation; and c) administrative support of the
Investigating Officer. Id.
The Commission finds that the type of activity described by complainant
falls under the definition of protected EEO activity.
As regards claim 1, we find initially that complainant's EEO counselor
contact was not untimely. The agency found that complainant was notified
of the transfer/reassignment in June 2008, but did not contact an EEO
counselor until March 24, 2009. The record contains a Memorandum
to complainant, dated June 2, 2008, notifying her of the transfer
and stating that the transfer would be effective September 1, 2008.
It is clear, however, that no such transfer occurred on that date and
there is no evidence showing complainant has been transferred to date.
Any complaint about the June 2008 notice, therefore, would be moot.
Complainant argues on appeal that her complaint does not refer to the
June 2008 notice, but rather to a second transfer notice she received
on January 22, 2009, which states that the transfer will be effective
June 6, 2010. Given these factors, we find that the date of the alleged
action was January 22, 2009.
The FAD states that complainant did not contact an EEO counselor until
March 24, 2009. A review of the EEO counselor's report, however,
shows that complainant's first counselor contact was on February 24,
2009, and complainant has submitted copies of e-mails showing that she
attempted to contact a counselor prior to February 24, 2009, but no one
would pick up the telephone. | Katherine J. Stewart,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092700
Agency No. AREUSCHIM09FEB0793
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 30, 2009, 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.
At the time of the events at issue, complainant was employed by the agency
as the Command Judge Advocate (attorney) for the 598th Transportation
Group, the Netherlands (598th NL). In her complaint, complainant alleged
that she was subjected to discrimination on the bases of sex (female),
age (50 years at time of incidents), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. on January 22, 2009, complainant was notified of the transfer of her
position from the Netherlands to Scott Air Force Base, Illinois;
2. complainant received a rating of 3.1 instead of a 5 for the rating
period from October 2007 through September 2008;
3. the agency changed complainant's rating official for Fiscal Year 2009;
and
4. in March 2009, management made the decision to remove a Paralegal
Specialist from complainant's location to Headquarters.
In its decision issued on April 30, 2009, the agency dismissed claim
1 pursuant to 29 C.F.R. § 1614.107(a)(5) on the grounds that it was a
proposed action. The agency also found that complainant's EEO counselor
contact was untimely. The agency dismissed the remaining three claims
for failure to state a claim on the grounds that complainant was not
harmed by the agency's actions.
In brief, on appeal complainant argues that, as regards claim 1, the
action is not a proposed action and was timely raised. As regards
claim 2, complainant argues that a lowered rating, especially one that
results in lower compensation, as is the case here, does result in harm
and hence states a claim. As regards claim 3, complainant argues that
she is harmed because her new rating official is located in a different
country, and as regards claim 4, the loss of the paralegal hampered
complainant's ability to perform her duties.
We note initially that complainant has claimed reprisal as a basis
of discrimination. The FAD found that complainant had not engaged in
protected EEO activity. The FAD states:
your allegation of reprisal for participation in 'EEO offenses' does
not constitute EEO reprisal. . . . you participated in an Article
15-6 with EEO-related activity. An Article 15-6 does not qualify for
EEO reprisal. EEO reprisal must be in direct relation to participation
in an EEO activity such as filing an EEO complaint or participating as
a witness in an EEO complaint. FAD. p.2.
The agency has not explained what an "Article 15-6" is or why
participation in such an action does not "qualify for EEO reprisal." Id.
The Commission has held that protected EEO activity includes opposition to
a practice made unlawful by one of the EEO statutes, and participation
in EEO activity, such as filing a charge, testifying, assisting,
or participating in any manner in an investigation, proceeding, or
hearing under the applicable statute, including testifying or presenting
evidence as part of an internal investigation pertaining to an alleged
EEO violation. See EEOC Compliance Manual, Section 2 - Threshold Issues,
No. 915.003 (May 12, 2000), at 2-14. In her Appeal Brief, complainant
argues that she "participated in an Army Regulation 15-6 Investigation
into EEO offences," Complainant's Appeal Brief, p. 5, that consisted of:
an investigation into complaints by individuals challenging employment
discrimination . . .. That participation included a) a close association
with the two individuals who first brought the charges to light and who
testified in that investigation; b) the rendering of a legal opinion
relating to this investigation; and c) administrative support of the
Investigating Officer. Id.
The Commission finds that the type of activity described by complainant
falls under the definition of protected EEO activity.
As regards claim 1, we find initially that complainant's EEO counselor
contact was not untimely. The agency found that complainant was notified
of the transfer/reassignment in June 2008, but did not contact an EEO
counselor until March 24, 2009. The record contains a Memorandum
to complainant, dated June 2, 2008, notifying her of the transfer
and stating that the transfer would be effective September 1, 2008.
It is clear, however, that no such transfer occurred on that date and
there is no evidence showing complainant has been transferred to date.
Any complaint about the June 2008 notice, therefore, would be moot.
Complainant argues on appeal that her complaint does not refer to the
June 2008 notice, but rather to a second transfer notice she received
on January 22, 2009, which states that the transfer will be effective
June 6, 2010. Given these factors, we find that the date of the alleged
action was January 22, 2009.
The FAD states that complainant did not contact an EEO counselor until
March 24, 2009. A review of the EEO counselor's report, however,
shows that complainant's first counselor contact was on February 24,
2009, and complainant has submitted copies of e-mails showing that she
attempted to contact a counselor prior to February 24, 2009, but no one
would pick up the telephone. Accordingly, we find that complainant's
EEO counselor contact was timely.
The agency also found that the action was a proposed action. Complainant
argues that the action is not a proposed action because it does not
propose or suggest that her position will be transferred, but "instead it
clearly instructs me of the decision , . . that my position will transfer
on a specific date." Complainant's Appeal Brief, p. 2. Following a
review of the record, we find that the action is a final, not proposed,
action that takes effect in the future. The record shows that a final
decision was made in January 2009 to transfer complainant on a specified
future date. Furthermore, the agency gave complainant until January
29, 2009 to accept the job offer at Scott Air Force Base or lose it.
Finally, we note that complainant is alleging reprisal. The Commission
has a policy of considering reprisal claims with a broad view of coverage.
See Carroll v. Department of the Army, EEOC Request No. 05970939 (April
4, 2000). Under Commission policy, claimed retaliatory actions which
can be challenged are not restricted to those which affect a term or
condition of employment. Rather, a complainant is protected from any
discrimination that is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May
20, 1998), at 8-15; see also Carroll, supra. Given these factors, we
find that being notified of a transfer to a workplace thousands of miles
away is an action that is reasonably likely to deter protected activity.
Accordingly we find that the agency erred in dismissing claim 1.
As regards claim 2, the Commission has consistently found that, even
when a lowered evaluation does not result in any change in compensation,
it states a valid claim. In the instant complaint, complainant argues
that her lowered evaluation also resulted in a loss of compensation.
Accordingly, we find that complainant has shown a present harm or loss
with respect to a term, condition, or privilege of employment and hence
states a valid claim. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
As regards claims 3 and 4, we note that the agency analyzed these claims
using the Diaz analysis and concluded that complainant had not shown any
harm. As noted above, however, complainant also alleges reprisal and such
claims are considered with a broad view of coverage. See Carroll, supra.
We also note complainant's assertions that the assignment of a new rater
in Illinois and the removal of her paralegal were initial steps in,
or made to add further justification to, the agency's planned transfer
of complainant to Illinois. Having analyzed claims 3 and 4 according
to the reprisal standard, and in conjunction with claims 1 and 2, we
find that complainant states valid claims of reprisal. We find that
complainant's allegations concerning these claims is sufficient to state
a viable claim of retaliation that requires further investigation.
Accordingly, for the reasons stated above, we REVERSE the FAD and REMAND
the complaint to the agency for processing in accordance with the Order
below.
ORDER (E0408)
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 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 (K1208)
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 (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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2009
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420 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024003225.pdf | 2024003225.pdf | PDF | application/pdf | 14,319 | Haywood C,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. | April 18, 2024 | Appeal Number: 2024003225
Background:
During the period at issue , Complainant was an applicant for an Orthopedic
Surgeon position at the Agency’s medical center in Albuquerque, New Mexico.
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 2024003225
On July 5, 2023, Complainant received an email from the Agency informing
him that his application for Orthopedic Surgeon was excluded from
consideration for lack of Am erican board certification.
On December 8, 2023, Complainant contacted an Agency EEO Counselor . The
parties were unable to resolve the matter informally.
On March 8, 2024, Complainant filed a formal complaint alleging that the Agency subjected him t o discrimination based on national origin (Indian)
when:
On July 5, 2023, complainant was not referred for the Orthopedic Surgeon position, Vacancy Announcement No. CBSX -11661413- 22-NS.
On April 18, 2024, the Agency issued the instant final decision. The Agency
dismissed the formal complaint for untimely EEO counselor contact. The
Agency determined that the alleged discriminatory event occurred on July 5, 2023, but that Complainant did not initiate contact with an EEO Counselor
until December 8, 2023, which was beyond the forty -five-day limitation
period. The Agency maintained that Complainant was deemed to have been
aware of the 45- day limitation period because, in 2015, he had filed an prior
EEO complaint.
CONTENTIONS ON APPEAL
On appeal, Compl ainant contend s that, despite filing a prior EEO complainant ,
he was never made aware of the 45- day time limit for initiating EEO Counselor
contact. Complainant explained that timeliness was never at issue in his 2015
EEO complaint. Complainant further stated that , based on his own research,
he mistakenly believed that he had 180 days to contact an EEO Counselor.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record
without regard to the factual and legal determinations of the previous decision
maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v.
Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997).
3 2024003225
Thus, all reasonable inferences that may be drawn from the complaint’s
allegations must be made in favor of the complainant.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint was im properly dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO Counselor contact.
ISSUE PRESENTED
Whether the formal EEO complainant was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
During the period at issue , Complainant was an applicant for an Orthopedic
Surgeon position at the Agency’s medical center in Albuquerque, New Mexico.
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 2024003225
On July 5, 2023, Complainant received an email from the Agency informing
him that his application for Orthopedic Surgeon was excluded from
consideration for lack of Am erican board certification.
On December 8, 2023, Complainant contacted an Agency EEO Counselor . The
parties were unable to resolve the matter informally.
On March 8, 2024, Complainant filed a formal complaint alleging that the Agency subjected him t o discrimination based on national origin (Indian)
when:
On July 5, 2023, complainant was not referred for the Orthopedic Surgeon position, Vacancy Announcement No. CBSX -11661413- 22-NS.
On April 18, 2024, the Agency issued the instant final decision. The Agency
dismissed the formal complaint for untimely EEO counselor contact. The
Agency determined that the alleged discriminatory event occurred on July 5, 2023, but that Complainant did not initiate contact with an EEO Counselor
until December 8, 2023, which was beyond the forty -five-day limitation
period. The Agency maintained that Complainant was deemed to have been
aware of the 45- day limitation period because, in 2015, he had filed an prior
EEO complaint.
CONTENTIONS ON APPEAL
On appeal, Compl ainant contend s that, despite filing a prior EEO complainant ,
he was never made aware of the 45- day time limit for initiating EEO Counselor
contact. Complainant explained that timeliness was never at issue in his 2015
EEO complaint. Complainant further stated that , based on his own research,
he mistakenly believed that he had 180 days to contact an EEO Counselor.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record
without regard to the factual and legal determinations of the previous decision
maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v.
Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997).
3 2024003225
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. § 1614.107(a) (2) states that an agency shall
dismiss an entire complaint that fails to comply with the applicable time limits. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that Complainant initiate contact with an EEO Counselor within forty -five days of the dat e of the
matter alleged to be discriminatory or within forty -five days of the effective
date of the personnel action. In accordance with 29 C.F.R. § 1614.105(a)(2), the Agency or the Commission shall extend the 45- day time limit if Complainant shows tha t he was not
notified or otherwise aware of the time limits, that he did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the EEO counselor within
the time limit, or for other reasons considered sufficient by the agency or the Commission.
Here, Complainant maintained that he was unaware of the 45- day time limit
to initiate contact with an EEO Counselor. The Agency’s final decision denied
that Complainant warranted an extension of the applicable time limit .
However, the Agency did not provide any evidence reflecting that
Complainant actually knew or should have known about the regulatory time
limit for EEO Counselor contact . Complainant wa s not an federal employee
such that he would have received EEO training or been expose d to EEO
posters . Although prior EEO activity may evidence awareness of the applicable
time limit, we observed Complainant’s prior EEO activity occurred in 2015,
approximately eight years before the present matter at issue. Furthermore,
none of the Agency evidence showed that Complainant was made aware of
the applicable time limit during his prior EEO activity .
Wherever timeliness is an issue, the Agency bears the burden of proving, with sufficient information, its determination of untimeliness. Guy v. De p’t. of
Energy , EEOC Request No. 05930703 (Jan. 4, 1994). Here, the Agency failed
has demonstrate that Complainant was notified or otherwise should have been aware of the 45- day requirement to initiate EEO Counselor contact.
4 2024003225 | Haywood C,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2024003225
Agency No. 200P -10N222024155866
DECISION
Compla inant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's final decision dated
April 18, 2024, dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Upon review, the Commission finds that Complainant's complaint was im properly dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO Counselor contact.
ISSUE PRESENTED
Whether the formal EEO complainant was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
During the period at issue , Complainant was an applicant for an Orthopedic
Surgeon position at the Agency’s medical center in Albuquerque, New Mexico.
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 2024003225
On July 5, 2023, Complainant received an email from the Agency informing
him that his application for Orthopedic Surgeon was excluded from
consideration for lack of Am erican board certification.
On December 8, 2023, Complainant contacted an Agency EEO Counselor . The
parties were unable to resolve the matter informally.
On March 8, 2024, Complainant filed a formal complaint alleging that the Agency subjected him t o discrimination based on national origin (Indian)
when:
On July 5, 2023, complainant was not referred for the Orthopedic Surgeon position, Vacancy Announcement No. CBSX -11661413- 22-NS.
On April 18, 2024, the Agency issued the instant final decision. The Agency
dismissed the formal complaint for untimely EEO counselor contact. The
Agency determined that the alleged discriminatory event occurred on July 5, 2023, but that Complainant did not initiate contact with an EEO Counselor
until December 8, 2023, which was beyond the forty -five-day limitation
period. The Agency maintained that Complainant was deemed to have been
aware of the 45- day limitation period because, in 2015, he had filed an prior
EEO complaint.
CONTENTIONS ON APPEAL
On appeal, Compl ainant contend s that, despite filing a prior EEO complainant ,
he was never made aware of the 45- day time limit for initiating EEO Counselor
contact. Complainant explained that timeliness was never at issue in his 2015
EEO complaint. Complainant further stated that , based on his own research,
he mistakenly believed that he had 180 days to contact an EEO Counselor.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by
the Commission, which requires the Commission to examine the record
without regard to the factual and legal determinations of the previous decision
maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v.
Department of the Treasury , EEOC Request No. 05970077 (March 13, 1997).
3 2024003225
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. § 1614.107(a) (2) states that an agency shall
dismiss an entire complaint that fails to comply with the applicable time limits. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that Complainant initiate contact with an EEO Counselor within forty -five days of the dat e of the
matter alleged to be discriminatory or within forty -five days of the effective
date of the personnel action. In accordance with 29 C.F.R. § 1614.105(a)(2), the Agency or the Commission shall extend the 45- day time limit if Complainant shows tha t he was not
notified or otherwise aware of the time limits, that he did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the EEO counselor within
the time limit, or for other reasons considered sufficient by the agency or the Commission.
Here, Complainant maintained that he was unaware of the 45- day time limit
to initiate contact with an EEO Counselor. The Agency’s final decision denied
that Complainant warranted an extension of the applicable time limit .
However, the Agency did not provide any evidence reflecting that
Complainant actually knew or should have known about the regulatory time
limit for EEO Counselor contact . Complainant wa s not an federal employee
such that he would have received EEO training or been expose d to EEO
posters . Although prior EEO activity may evidence awareness of the applicable
time limit, we observed Complainant’s prior EEO activity occurred in 2015,
approximately eight years before the present matter at issue. Furthermore,
none of the Agency evidence showed that Complainant was made aware of
the applicable time limit during his prior EEO activity .
Wherever timeliness is an issue, the Agency bears the burden of proving, with sufficient information, its determination of untimeliness. Guy v. De p’t. of
Energy , EEOC Request No. 05930703 (Jan. 4, 1994). Here, the Agency failed
has demonstrate that Complainant was notified or otherwise should have been aware of the 45- day requirement to initiate EEO Counselor contact.
4 2024003225
CONCLUSION
The Agency's f inal decision dismissing the formal complaint is REVERSED. The
formal complaint is REMANDED to the Agency for further processing in
accordance with the ORDER below .
ORDER (E0224)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it
has received the remanded claim 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 al so 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 hea ring, the Agency
shall issue a final decision within sixty (60) days of receipt of Complainant’s
request.
As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either
a copy of the complainant’s request for a hearing, or a copy of the final agency
decision (“FAD”) if Complainant does not request a hearing.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (F edSEP) supporting documents in the digital
format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance repor t in
the digital format required by the Commission. See 29 C.F.R. § 1614.403(g).
The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/h er 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).
5 2024003225
The Complainant also has the right to file a civil action to enforce compli ance
with the Commission’s order prior to or following an administrative petition for
enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil
action on the underlying 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 r eport or implement any of
the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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 decisi on 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 Dir ective
for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015).
6 2024003225
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, Eq ual Employment Opportunity
Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format
via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30 -day time period will result in dismissal of the
party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting
documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration
filed after the deadline only in very limited circumstances. See 29 C.F.R. §
1614.604(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District C ourt
within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with
the Agency, or filed your appeal with the Commission. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by their full name and official title.
7 2024003225
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 act ion, you may request the court to
appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these
types of requests. Such requests do not alter the time limits for filing a civil
action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
.
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s si
Carlton M. Hadden, Director
Office of Federal Operations
August 13, 2024
Date | [
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421 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/0120182576.pdf | 0120182576.pdf | PDF | application/pdf | 14,633 | David H,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. | April 21, 2016 | Appeal Number: 0120182576
Background:
At the time of events giving rise to this complaint, Complainant worked as a GS -13 Immigration
Officer at the Agency’s California Service Center. On April 21, 2016, Complainant contacted an EEO Counselor and filed a n EEO com plaint on May 31, 2016, alleging that the Agency harassed
and discriminated against him in reprisal for prior protected EEO activity when on March 7, 2016,
he received an email that informed him that he was excluded from an EEO Advisory Committee because o f his prior EEO activity.
In a letter dated July 28, 2016, the Agency informed the EEOC’s San Diego Local Office that
Complainant had file a purported class complaint and transmitted the complaint to the EEOC for
a determination on certification. On May 23, 2018, the AJ issued a Notice of Intent to Issue a
Legal Analysis:
the Commission VACATES t he AJ’s decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS -13 Immigration
Officer at the Agency’s California Service Center. On April 21, 2016, Complainant contacted an EEO Counselor and filed a n EEO com plaint on May 31, 2016, alleging that the Agency harassed
and discriminated against him in reprisal for prior protected EEO activity when on March 7, 2016,
he received an email that informed him that he was excluded from an EEO Advisory Committee because o f his prior EEO activity.
In a letter dated July 28, 2016, the Agency informed the EEOC’s San Diego Local Office that
Complainant had file a purported class complaint and transmitted the complaint to the EEOC for
a determination on certification. On May 23, 2018, the AJ issued a Notice of Intent to Issue a
Decision without a Hearing, to which Complainant responded in opposition on June 7, 2018. In his response, Complainant noted that he was alleging class discrimination in reprisal for prior
EEO act ivity when on March 7, 2016, all employees at the California Service Center received a
job announcement via email that stated that the EE O Committee and its members “shall not be
involved in any individual EEO issues where a pre -complaint or complaint has been filed.”
Complainant maintained that this announcement is reasonably likely to deter employees from engaging in EEO activity. Additionally, Complainant submitted a Motion to Amend in which he alleged that he was subjected
to several other acts of h arassment, including : incidents wherein the Chief of Staff scrutinized his
work schedule, duties, and emails ; an A gency offici al (S1) accused Complainant of having a
“mean face” at a May 18, 2017 training cl ass; S1 told Complainant he could go to the union if he
did not like it when discussing discrimination issues; S1 requested that Complainant be removed off her team after he opposed discrimination; S1 called Complainant “creepy and explosive” in
February 2014; S1 told an entire class that “no supervisor wants him” on their team; S1 taunted
Complainant at the gym and scrutinized his whereabouts; S1 accused Complainant of harassment in the gym and of not attending a picnic; and in 2014, S1 did not approve Complainant for overtime, made unfounded allegations about his work that negatively impacted his rating, kept
Complainant off emails, and did not respond to his emails. Complainant also sought to amend his
complaint to include the additional bases of race (Asian), color (light brown complexion), and age (over 40 years old). On June 12, 2018, the AJ gr anted Complainant’s Motion to Amend regarding additional bases of
discrimination with respect to the EEO Advisory Committee announcement. However, the AJ
denied Complainant’s Motion to Amend regarding his request to include additional incidents of harassing conduct to his complaint on the basis that the alleged actions were not like or related to
the EEO Advisory Committee issue, and the additional matters could be better addressed in
Complainant’s other EEO complaint that contained allegations of harassment by the same actors during the same period. Regarding the EEO Advisory Committee issue, the AJ issued summary judgment in favor of the Agency. The AJ reasoned that the Agency provided a legitimate, nondiscriminatory reason for its actions when it stated that its announcement was based on a collective bargaining agreement
(CBA ) that required that individuals on the EEO Advisory Committee not be currently embroiled
in individual EEO matters. Consequently, the AJ dismissed Complainant’s individual and class
claims. There is no record evidence that the Agency issued a final order, and without such an
order, the AJ’s decision became the final decision within 40 days of receipt of the A J’s order, in
accordance with 29 C.F.R. § 1614.109(i).
CONTENTIONS ON APPEAL
Neither party presents any arguments on appeal.
ANALYSIS AND FINDINGS
Processing of Class Complaints
In this case, Complainant first indicated that he sought to file a class complaint alleging reprisal regarding the EEO Advisory Committee during counseling . Complaint then filed a formal
complaint regarding this matter on May 31, 2016. EEO Regulation 29 C.F.R. § 1614.204(d) provides that within 30 days of an agency’s re ceipt of a class complaint, the agency shall designate
an agency representative and forward the complaint to the Commission. Initially, the AJ may
dismiss the complaint on procedural bases found at 29 C.F.R. § 1614.107, or because the complaint does not m eet of the prereq uisites for certifying a class complaint under 29 C.F.R. §
1614.204(a)(2); see also Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 ( EEO MD -110), at Chap. 8 § IV ( Aug. 5, 2015) ( Commission will assign an
Administrative Judge , or in some limited circumstances , a complaints examiner from another
agency to issue a decision on certification ).
Here, after receiving the complaint, the AJ immediately addressed the merits of the complaint .
However, an AJ must initially address whether a class complaint should be certified before
addressing the merits of the claims , which the AJ did not do here. See EEO MD-110, at Chap. 8
§V.A. ( Administrative Judge shall issue a decision on whether to certify or dismiss a cla ss
complaint ). As such, we find that the AJ ’s finding on the merits was premature , and we vacate
that decision herein . Further, Complainant requested that the complaint be amended to include
additional bases of discrimination and allegations of harassmen t. After a review of the record, we
find that Complainant’s Motion to Amend his individual complaint should be reviewed by the AJ after a decision on class certification is issued , and therefore , we likewise vacate the AJ ’s rulings
on Complainant’s Motion. | David H,1
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120182576
Hearing No. 480-2016-00828X
Agency No. HS0CIS026214-2016
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from an EEOC Administrative Judge’s (AJ) 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. For the following reasons, the Commission VACATES t he AJ’s decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS -13 Immigration
Officer at the Agency’s California Service Center. On April 21, 2016, Complainant contacted an EEO Counselor and filed a n EEO com plaint on May 31, 2016, alleging that the Agency harassed
and discriminated against him in reprisal for prior protected EEO activity when on March 7, 2016,
he received an email that informed him that he was excluded from an EEO Advisory Committee because o f his prior EEO activity.
In a letter dated July 28, 2016, the Agency informed the EEOC’s San Diego Local Office that
Complainant had file a purported class complaint and transmitted the complaint to the EEOC for
a determination on certification. On May 23, 2018, the AJ issued a Notice of Intent to Issue a
Decision without a Hearing, to which Complainant responded in opposition on June 7, 2018. In his response, Complainant noted that he was alleging class discrimination in reprisal for prior
EEO act ivity when on March 7, 2016, all employees at the California Service Center received a
job announcement via email that stated that the EE O Committee and its members “shall not be
involved in any individual EEO issues where a pre -complaint or complaint has been filed.”
Complainant maintained that this announcement is reasonably likely to deter employees from engaging in EEO activity. Additionally, Complainant submitted a Motion to Amend in which he alleged that he was subjected
to several other acts of h arassment, including : incidents wherein the Chief of Staff scrutinized his
work schedule, duties, and emails ; an A gency offici al (S1) accused Complainant of having a
“mean face” at a May 18, 2017 training cl ass; S1 told Complainant he could go to the union if he
did not like it when discussing discrimination issues; S1 requested that Complainant be removed off her team after he opposed discrimination; S1 called Complainant “creepy and explosive” in
February 2014; S1 told an entire class that “no supervisor wants him” on their team; S1 taunted
Complainant at the gym and scrutinized his whereabouts; S1 accused Complainant of harassment in the gym and of not attending a picnic; and in 2014, S1 did not approve Complainant for overtime, made unfounded allegations about his work that negatively impacted his rating, kept
Complainant off emails, and did not respond to his emails. Complainant also sought to amend his
complaint to include the additional bases of race (Asian), color (light brown complexion), and age (over 40 years old). On June 12, 2018, the AJ gr anted Complainant’s Motion to Amend regarding additional bases of
discrimination with respect to the EEO Advisory Committee announcement. However, the AJ
denied Complainant’s Motion to Amend regarding his request to include additional incidents of harassing conduct to his complaint on the basis that the alleged actions were not like or related to
the EEO Advisory Committee issue, and the additional matters could be better addressed in
Complainant’s other EEO complaint that contained allegations of harassment by the same actors during the same period. Regarding the EEO Advisory Committee issue, the AJ issued summary judgment in favor of the Agency. The AJ reasoned that the Agency provided a legitimate, nondiscriminatory reason for its actions when it stated that its announcement was based on a collective bargaining agreement
(CBA ) that required that individuals on the EEO Advisory Committee not be currently embroiled
in individual EEO matters. Consequently, the AJ dismissed Complainant’s individual and class
claims. There is no record evidence that the Agency issued a final order, and without such an
order, the AJ’s decision became the final decision within 40 days of receipt of the A J’s order, in
accordance with 29 C.F.R. § 1614.109(i).
CONTENTIONS ON APPEAL
Neither party presents any arguments on appeal.
ANALYSIS AND FINDINGS
Processing of Class Complaints
In this case, Complainant first indicated that he sought to file a class complaint alleging reprisal regarding the EEO Advisory Committee during counseling . Complaint then filed a formal
complaint regarding this matter on May 31, 2016. EEO Regulation 29 C.F.R. § 1614.204(d) provides that within 30 days of an agency’s re ceipt of a class complaint, the agency shall designate
an agency representative and forward the complaint to the Commission. Initially, the AJ may
dismiss the complaint on procedural bases found at 29 C.F.R. § 1614.107, or because the complaint does not m eet of the prereq uisites for certifying a class complaint under 29 C.F.R. §
1614.204(a)(2); see also Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 ( EEO MD -110), at Chap. 8 § IV ( Aug. 5, 2015) ( Commission will assign an
Administrative Judge , or in some limited circumstances , a complaints examiner from another
agency to issue a decision on certification ).
Here, after receiving the complaint, the AJ immediately addressed the merits of the complaint .
However, an AJ must initially address whether a class complaint should be certified before
addressing the merits of the claims , which the AJ did not do here. See EEO MD-110, at Chap. 8
§V.A. ( Administrative Judge shall issue a decision on whether to certify or dismiss a cla ss
complaint ). As such, we find that the AJ ’s finding on the merits was premature , and we vacate
that decision herein . Further, Complainant requested that the complaint be amended to include
additional bases of discrimination and allegations of harassmen t. After a review of the record, we
find that Complainant’s Motion to Amend his individual complaint should be reviewed by the AJ after a decision on class certification is issued , and therefore , we likewise vacate the AJ ’s rulings
on Complainant’s Motion.
CONCLUSION
Accordingly, the Commission VACATES the AJ’s June 12, 2018 decision and REMANDS this matter for further processing consistent with this decision and the ORDER herein .
ORDER
The Agency shall sub mit to the Hearings Unit of the EEOC Los Angeles District Office the request
for a hearing within 30 days of the date this decision is issued. The Agency is directed to subm it
a copy of the complaint file to the EEOC Hearings Unit within 30 days of the date this decision is issued. Thereafter, the Administrative Judge shall issue a decision on certification of the class complaint in accordance with the regulation set forth at 29 C.F.R. § 1614.204(d)(2) and the A gency
shall issue a final action in accordance with the regulation set fo rth at 29 C.F.R. §1614.204(d)(7) .
Additionally, Complainant's individual complaint shall be held in abeyance pending the AJ's
decision on class certification.
The Agency shall provide written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Un it. A copy of the Agency’s
request for a hearing and a copy of the Agency’s new decision must be submitted to the Federal Sector EEO Portal (FedSEP) .
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 Se ctor 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 fina l 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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 t he 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 file d 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 hun dred 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 d epartment 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
depart ment 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 permiss ion 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
June 30, 2020
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422 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a44542.txt | 01a44542.txt | TXT | text/plain | 16,083 | Phyllis L. Black v. Department of the Treasury 01A44542 November 29, 2004 . Phyllis L. Black, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. | November 29, 2004 | Appeal Number: 01A44542
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 27, 2004, dismissing her 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 December 24, 2003, complainant filed a formal complaint, claiming
that she was the victim of unlawful employment discrimination in reprisal
for prior protected activity.
In its May 27, 2004 final decision, the agency determined that complainant
sought EEO counseling on October 10, 2003. The agency further determined
that the instant complaint was comprised of the claim that complainant
was subjected to discrimination in reprisal for prior EEO activity when:
During Mid 2001, complainant was asked by the Acting Department Manager
to return to the Collection Division for a detail beginning in August
2001, and ending in October 2001;
During September 2002, she did not receive an annual performance award;
From February 2002 through February 2003, she had five weeks of classroom
training, despite being advised that she would be trained by job coaches
for one year; and as result, she was not properly trained;
As result of not being properly trained, her manager wrote her up on
several occasions for poor performance;
During her training phase, her manager assigned her 12 to 15 cases at a
time, even though she was aware complainant had an inventory that was
beginning to overage because of the unreasonable amount of inventory
being assigned to her;
During 2003, her manager put her inventory into a large cart and made
her push the cart from room to room in an attempt to embarrass her in
front of her peers;
During August 2003, she was denied installment training;
During 2003, two employees within her work group received awards and
she did not;
During 2003, she received an unacceptable appraisal rating which does
not accurately reflect her performance;
During September and October 2003, she was denied the opportunity to
work overtime;
During 2003, complainant was assigned to perform collection work while two
other employees within her same grade/series were given clerical duties;
During October 2003, employees were given an opportunity to be reassigned
during the reorganization, to the Collection or the Examination Division;
however, when she volunteered for a reassignment to the Collection
Division, she was denied a position; and
She was blacklisted by management because, when she was an EEO Counselor
in 1985, she forwarded a 30-day letter to a group of employees.
The agency dismissed complainant's claims (1), (2), (3) and (7) pursuant
to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact, and
claims (4) - (6) and (8) - (13) pursuant to 29 C.F.R. § 1614.107(a)(7),
for failure to cooperate. The agency's decision indicated that an EEO
specialist had made numerous attempts to contact complainant for an
explanation as to the timeliness of her EEO contact for claims (1), (2),
(3) and (7), and to obtain other information concerning claims (4) -
(6) and (8) - (13). Specifically, the agency stated that it attempted
to contact complainant to obtain information in writing on January 16,
21, 23, and 26, 2004; and by telephone on five occasions from February
5 through March 5, 2004. The agency also stated that a final attempt
to secure information was made on April 8, 2004, by certified mail,
indicating complainant had fifteen days to respond or face dismissal
of the complaint. The agency determined that complainant received the
April 8, 2004 letter on April 21, 2004, but had not responded to the
letter, or any other request for information. The agency thus determined
that complainant's October 10, 2003 EEO Counselor contact was more
than forty-five days after the dates of incident for claims (1), (2),
(3), and (7); and that her EEO Counselor contact for those claims was
therefore untimely. The agency also found, that complainant had failed
to provide requested information with regard to claims (4) - (6) and (8) -
(13), and that the record was insufficient to adjudicate those claims.
The record reflects that, on February 5, 2004, complainant sent
by facsimile transmission, a seven-page hand-written letter,
with attachments, to the agency EEO Specialist in response to her
January 16, 2004 request for information. In the letter, complainant
stated that she received the e-mail request on January 21, 2004,
and attempted to call the EEO Specialist on February 4 and 5, 2004.
In her specific responses to the agency's questions, complainant stated,
while discussing the denial of an award in late Sept or early Oct, that
she contacted the EEO as early [as] Sept, but had to wait until someone
was assigned to me. Complainant also stated that awards were given out
in Oct. of each year or [s]ometimes Sept., and that she addressed
EEO before 45 days had expired. We also note that, concerning claim
(1), complainant's response maintained that she was asked to return to
the Collection Division for a detail from August through October 2002,
and not in 2001, as stated in the agency's final decision.
The Commission first determines, with regard to claims (1), (2), (3),
and (7), that there is insufficient evidence of record to determine
whether complainant made timely EEO Counselor contact. In its final
decision, the agency determined that complainant's EEO Counselor contact
was on October 10, 2003; however, there is no evidence in the record
addressing complainant's February 5, 2004 contentions of prior contact.
Moreover, it is unclear whether complainant's statements concerning
her EEO Counselor contact relate to a 2002 (claim (2)) or a 2003 (claim
(8)) award denial claim, and it is unclear how her EEO contact relates to
complainant's asserted incident dates in claim (1). Complainant provides
some specific information concerning her claimed EEO contact prior to
October 10, 2003; however, she has provided no evidence for the record
to substantiate her assertions. Consequently, we remand claims (1),
(2), (3), and (7) to the agency to supplement the record with evidence
of when complainant made EEO Counselor contact, and to clarify the date
of incident for claim (1).
Legal Analysis:
The Commission first determines, with regard to claims (1), (2), (3),
and (7), that there is insufficient evidence of record to determine
whether complainant made timely EEO Counselor contact. In its final
decision, the agency determined that complainant's EEO Counselor contact
was on October 10, 2003; however, there is no evidence in the record
addressing complainant's February 5, 2004 contentions of prior contact.
Moreover, it is unclear whether complainant's statements concerning
her EEO Counselor contact relate to a 2002 (claim (2)) or a 2003 (claim
(8)) award denial claim, and it is unclear how her EEO contact relates to
complainant's asserted incident dates in claim (1). Complainant provides
some specific information concerning her claimed EEO contact prior to
October 10, 2003; however, she has provided no evidence for the record
to substantiate her assertions. Consequently, we remand claims (1),
(2), (3), and (7) to the agency to supplement the record with evidence
of when complainant made EEO Counselor contact, and to clarify the date
of incident for claim (1).
EEOC Regulation 29 C.F.R. § 1614.107(a)(7) provides for the dismissal
of a complaint where the agency has provided the complainant with a
written request to provide relevant information or otherwise proceed
with the complaint, and the complainant has failed 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 further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has also held that such dismissal is applicable only in
cases where there is a clear record of delay or contumacious conduct by
the complainant. See Magdalene Anderson v. United States Postal Service,
EEOC Request No. 05940850 (February 24, 1995)
We also find that the improperly dismissed claims (4) - (6) and (8) - (13)
, based on complainant's failure to respond to requests for information.
First, we find that the agency has not shown that the complaint
could not be adjudicated without further information from complainant.
The record indicates that most, if not all, of the information requested
of complainant was provided in the EEO Counselor's Report and in the
extensive seven-page hand-written letter, with attachments, sent by
complainant to the agency on February 5, 2004. Moreover, as evidenced
by that response, the agency incorrectly found that complainant did
not respond to any of its inquiries, and thus failed to establish that
complainant engaged in delay or contumacious conduct sufficient to warrant
dismissal of the complaint. We therefore determine that claims (4) -
(6) and (8) - (13) were improperly dismissed for failure to cooperate
pursuant to 29 C.F.R. § 1614.107(a)(7).<1>
Final Decision:
Accordingly, the agency's decision to dismiss claims (1), (2), (3), and (7) for untimely EEO contact is VACATED. | Phyllis L. Black v. Department of the Treasury
01A44542
November 29, 2004
.
Phyllis L. Black,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A44542
Agency No. 04-2152
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 27, 2004, dismissing her 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 December 24, 2003, complainant filed a formal complaint, claiming
that she was the victim of unlawful employment discrimination in reprisal
for prior protected activity.
In its May 27, 2004 final decision, the agency determined that complainant
sought EEO counseling on October 10, 2003. The agency further determined
that the instant complaint was comprised of the claim that complainant
was subjected to discrimination in reprisal for prior EEO activity when:
During Mid 2001, complainant was asked by the Acting Department Manager
to return to the Collection Division for a detail beginning in August
2001, and ending in October 2001;
During September 2002, she did not receive an annual performance award;
From February 2002 through February 2003, she had five weeks of classroom
training, despite being advised that she would be trained by job coaches
for one year; and as result, she was not properly trained;
As result of not being properly trained, her manager wrote her up on
several occasions for poor performance;
During her training phase, her manager assigned her 12 to 15 cases at a
time, even though she was aware complainant had an inventory that was
beginning to overage because of the unreasonable amount of inventory
being assigned to her;
During 2003, her manager put her inventory into a large cart and made
her push the cart from room to room in an attempt to embarrass her in
front of her peers;
During August 2003, she was denied installment training;
During 2003, two employees within her work group received awards and
she did not;
During 2003, she received an unacceptable appraisal rating which does
not accurately reflect her performance;
During September and October 2003, she was denied the opportunity to
work overtime;
During 2003, complainant was assigned to perform collection work while two
other employees within her same grade/series were given clerical duties;
During October 2003, employees were given an opportunity to be reassigned
during the reorganization, to the Collection or the Examination Division;
however, when she volunteered for a reassignment to the Collection
Division, she was denied a position; and
She was blacklisted by management because, when she was an EEO Counselor
in 1985, she forwarded a 30-day letter to a group of employees.
The agency dismissed complainant's claims (1), (2), (3) and (7) pursuant
to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact, and
claims (4) - (6) and (8) - (13) pursuant to 29 C.F.R. § 1614.107(a)(7),
for failure to cooperate. The agency's decision indicated that an EEO
specialist had made numerous attempts to contact complainant for an
explanation as to the timeliness of her EEO contact for claims (1), (2),
(3) and (7), and to obtain other information concerning claims (4) -
(6) and (8) - (13). Specifically, the agency stated that it attempted
to contact complainant to obtain information in writing on January 16,
21, 23, and 26, 2004; and by telephone on five occasions from February
5 through March 5, 2004. The agency also stated that a final attempt
to secure information was made on April 8, 2004, by certified mail,
indicating complainant had fifteen days to respond or face dismissal
of the complaint. The agency determined that complainant received the
April 8, 2004 letter on April 21, 2004, but had not responded to the
letter, or any other request for information. The agency thus determined
that complainant's October 10, 2003 EEO Counselor contact was more
than forty-five days after the dates of incident for claims (1), (2),
(3), and (7); and that her EEO Counselor contact for those claims was
therefore untimely. The agency also found, that complainant had failed
to provide requested information with regard to claims (4) - (6) and (8) -
(13), and that the record was insufficient to adjudicate those claims.
The record reflects that, on February 5, 2004, complainant sent
by facsimile transmission, a seven-page hand-written letter,
with attachments, to the agency EEO Specialist in response to her
January 16, 2004 request for information. In the letter, complainant
stated that she received the e-mail request on January 21, 2004,
and attempted to call the EEO Specialist on February 4 and 5, 2004.
In her specific responses to the agency's questions, complainant stated,
while discussing the denial of an award in late Sept or early Oct, that
she contacted the EEO as early [as] Sept, but had to wait until someone
was assigned to me. Complainant also stated that awards were given out
in Oct. of each year or [s]ometimes Sept., and that she addressed
EEO before 45 days had expired. We also note that, concerning claim
(1), complainant's response maintained that she was asked to return to
the Collection Division for a detail from August through October 2002,
and not in 2001, as stated in the agency's final decision.
The Commission first determines, with regard to claims (1), (2), (3),
and (7), that there is insufficient evidence of record to determine
whether complainant made timely EEO Counselor contact. In its final
decision, the agency determined that complainant's EEO Counselor contact
was on October 10, 2003; however, there is no evidence in the record
addressing complainant's February 5, 2004 contentions of prior contact.
Moreover, it is unclear whether complainant's statements concerning
her EEO Counselor contact relate to a 2002 (claim (2)) or a 2003 (claim
(8)) award denial claim, and it is unclear how her EEO contact relates to
complainant's asserted incident dates in claim (1). Complainant provides
some specific information concerning her claimed EEO contact prior to
October 10, 2003; however, she has provided no evidence for the record
to substantiate her assertions. Consequently, we remand claims (1),
(2), (3), and (7) to the agency to supplement the record with evidence
of when complainant made EEO Counselor contact, and to clarify the date
of incident for claim (1).
EEOC Regulation 29 C.F.R. § 1614.107(a)(7) provides for the dismissal
of a complaint where the agency has provided the complainant with a
written request to provide relevant information or otherwise proceed
with the complaint, and the complainant has failed 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 further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has also held that such dismissal is applicable only in
cases where there is a clear record of delay or contumacious conduct by
the complainant. See Magdalene Anderson v. United States Postal Service,
EEOC Request No. 05940850 (February 24, 1995)
We also find that the improperly dismissed claims (4) - (6) and (8) - (13)
, based on complainant's failure to respond to requests for information.
First, we find that the agency has not shown that the complaint
could not be adjudicated without further information from complainant.
The record indicates that most, if not all, of the information requested
of complainant was provided in the EEO Counselor's Report and in the
extensive seven-page hand-written letter, with attachments, sent by
complainant to the agency on February 5, 2004. Moreover, as evidenced
by that response, the agency incorrectly found that complainant did
not respond to any of its inquiries, and thus failed to establish that
complainant engaged in delay or contumacious conduct sufficient to warrant
dismissal of the complaint. We therefore determine that claims (4) -
(6) and (8) - (13) were improperly dismissed for failure to cooperate
pursuant to 29 C.F.R. § 1614.107(a)(7).<1>
Accordingly, the agency's decision to dismiss claims (1), (2), (3), and
(7) for untimely EEO contact is VACATED. The agency's decision dismissing
claims (4) - (6) and (8) - (13) for failure to cooperate is REVERSED.
The complaint is hereby REMANDED to the agency for further processing
in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation to
determine the date of complainant's EEO Counselor contact, and to clarify
the dates of incident for claim (1). The agency shall supplement the
record with any relevant documentation obtained as a result of its
investigation, specifically including affidavits from complainant,
complainant's EEO Counselor, and any other relevant EEO and Human
Resources personnel. Within thirty (30) calendar days of the date
this decision becomes final, the agency shall either issue a notice of
processing or a final decision, pursuant to 29 C.F.R. § 1614.107(b).
2. The agency is ordered to process claims (4) - (6) and (8) - (13) 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 notice of processing and determination pursuant
to 29 C.F.R. § 1614.107(b), if applicable, regarding claims (1), (2),
(3), and (7), as well as 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 regarding claims (4)-(6) and (8)-(13) 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
November 29, 2004
__________________
Date
1The Commission nonetheless advises complainant
to cooperate with the agency in the continued processing of the instant
complaint, or face a possible future dismissal of the complaint.
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423 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a55288.txt | 01a55288.txt | TXT | text/plain | 13,322 | Thomas R. Blair, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. | July 8, 2005 | Appeal Number: 01A55288
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the basis of age (D.O.B. February 23, 1934) when, in February 2002, he was demoted from the position of Associate Chief of Staff for Extended Care. As remedy, complainant requested monetary compensation for the two years of lost pay plus retirement annuity.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 8, 2005, 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.
The record indicated that complainant was removed from his position as
Associate Chief of Staff for Extended Care in February 2002, allegedly
due to budgetary reasons. In November 2004, complainant learned from
an agency bulletin that the agency established a new Associate Chief
position and selected someone to serve in that position. After learning
about the new Associate Chief position, complainant contacted the EEO
Program Manager in December 2004. The EEO Program Manager provided
complainant with the contact information for the EEO Complaint Process.
She also agreed to communicate his concerns with the Chief of Staff.
Complainant contacted the EEO Program Manager about two to three weeks
later and scheduled a follow-up meeting. On January 12, 2005, the
EEO Program Manager met with complainant but he was not satisfied with
what she had to tell him about her inquiries. The EEO Program Manager
indicated that she encouraged complainant to speak with an EEO Counselor.
On February 15, 2005, complainant contacted the EEO Counselor regarding
his complaint. When counseling did not resolve the matter, complainant
was provided a Notice of Right to File. In his complaint, complainant
alleged that he was subjected to discrimination on the basis of age
(D.O.B. February 23, 1934) when, in February 2002, he was demoted from
the position of Associate Chief of Staff for Extended Care. As remedy,
complainant requested monetary compensation for the two years of lost
pay plus retirement annuity.
The agency defined the complaint as discrimination on the basis of age
when in February 2002, complainant was demoted from his Associate Chief
position due to budgetary conditions and in November 2004, he became
aware that a new Associate Chief position was re-established and filled.
The agency dismissed the matter for untimely EEO contact pursuant to
29 C.F.R. § 1614.107 (a)(2). In particular, the agency indicated that
complainant's February 15, 2005 contact was beyond the forty-five (45)
calendar days of the alleged discriminatory event.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in §1614.105, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
A review of the record indicates that the crux of complainant's complaint
involved his demotion and abolishment of his Associate Chief position
in February 2002. He asserted that at that time, he was told that his
position was abolished due to dire budgetary conditions. Complainant
indicated that when he saw the Bulletin about the new Associate Chief
position, he believed that the agency's actions in 2002 were unwarranted
and arbitrary. Therefore, we find that complainant is actually
alleging discrimination as to the events of 2002. A fair reading of the
pre-complaint documents, the formal complaint and complainant's arguments
on appeal reflects that complainant did not develop a reasonable suspicion
of unlawful employment discrimination when he was initially demoted
in 2002. Rather the weight of the evidence establishes that complainant
only developed a reasonable suspicion of unlawful discrimination when
subsequently, in November 2004, he became aware that the agency created
a new Associate Chief position to which another employee was assigned.
The agency has provided no evidence in rebuttal to complainant's
assertions. Where as here, there is an issue of timeliness, "an
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness." Guy v. Department of
Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
The Commission finds that complainant's argument is sufficiently
persuasive to warrant an extension of the time limit for initiating EEO
Counselor contact.
Further, the agency argued that complainant did not contact the EEO
Counselor until February 2005. 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 intent to
begin the process. See Allen v. United States Postal Serv., EEOC Request
No. 05950933 (July 9, 1996); Grauff v. Department of Transportation,
EEOC Appeal No. 01A42718 (September 8, 2004).
Review of the record discloses that in December 2004, complainant
contacted the EEO Program Manager regarding the bulletin and his 2002
demotion. The EEO Program Manager indicated that she would conduct
an inquiry into the matter and would meet with complainant after a few
weeks to discuss her findings. Therefore, we find that complainant made
contact and exhibited an intent to begin the EEO process. Furthermore,
we find that the agency's EEO Program Manager is an individual logically
connected to the EEO process. Therefore, notwithstanding February 15,
2005 date reflected in the EEO Counselor's report, we determine that
complainant's contact with the EEO Program Manager in December 2004 is
sufficient to establish initial EEO Counselor contact, and that this
contact is timely.
Final Decision:
Accordingly, the agency's final decision dismissing the complaint is reversed. | Thomas R. Blair,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55288
Agency No. 200P-0640-2005101477
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 8, 2005, 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.
The record indicated that complainant was removed from his position as
Associate Chief of Staff for Extended Care in February 2002, allegedly
due to budgetary reasons. In November 2004, complainant learned from
an agency bulletin that the agency established a new Associate Chief
position and selected someone to serve in that position. After learning
about the new Associate Chief position, complainant contacted the EEO
Program Manager in December 2004. The EEO Program Manager provided
complainant with the contact information for the EEO Complaint Process.
She also agreed to communicate his concerns with the Chief of Staff.
Complainant contacted the EEO Program Manager about two to three weeks
later and scheduled a follow-up meeting. On January 12, 2005, the
EEO Program Manager met with complainant but he was not satisfied with
what she had to tell him about her inquiries. The EEO Program Manager
indicated that she encouraged complainant to speak with an EEO Counselor.
On February 15, 2005, complainant contacted the EEO Counselor regarding
his complaint. When counseling did not resolve the matter, complainant
was provided a Notice of Right to File. In his complaint, complainant
alleged that he was subjected to discrimination on the basis of age
(D.O.B. February 23, 1934) when, in February 2002, he was demoted from
the position of Associate Chief of Staff for Extended Care. As remedy,
complainant requested monetary compensation for the two years of lost
pay plus retirement annuity.
The agency defined the complaint as discrimination on the basis of age
when in February 2002, complainant was demoted from his Associate Chief
position due to budgetary conditions and in November 2004, he became
aware that a new Associate Chief position was re-established and filled.
The agency dismissed the matter for untimely EEO contact pursuant to
29 C.F.R. § 1614.107 (a)(2). In particular, the agency indicated that
complainant's February 15, 2005 contact was beyond the forty-five (45)
calendar days of the alleged discriminatory event.
EEOC Regulation 29 C.F.R. §1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in §1614.105, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
A review of the record indicates that the crux of complainant's complaint
involved his demotion and abolishment of his Associate Chief position
in February 2002. He asserted that at that time, he was told that his
position was abolished due to dire budgetary conditions. Complainant
indicated that when he saw the Bulletin about the new Associate Chief
position, he believed that the agency's actions in 2002 were unwarranted
and arbitrary. Therefore, we find that complainant is actually
alleging discrimination as to the events of 2002. A fair reading of the
pre-complaint documents, the formal complaint and complainant's arguments
on appeal reflects that complainant did not develop a reasonable suspicion
of unlawful employment discrimination when he was initially demoted
in 2002. Rather the weight of the evidence establishes that complainant
only developed a reasonable suspicion of unlawful discrimination when
subsequently, in November 2004, he became aware that the agency created
a new Associate Chief position to which another employee was assigned.
The agency has provided no evidence in rebuttal to complainant's
assertions. Where as here, there is an issue of timeliness, "an
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness." Guy v. Department of
Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
The Commission finds that complainant's argument is sufficiently
persuasive to warrant an extension of the time limit for initiating EEO
Counselor contact.
Further, the agency argued that complainant did not contact the EEO
Counselor until February 2005. 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 intent to
begin the process. See Allen v. United States Postal Serv., EEOC Request
No. 05950933 (July 9, 1996); Grauff v. Department of Transportation,
EEOC Appeal No. 01A42718 (September 8, 2004).
Review of the record discloses that in December 2004, complainant
contacted the EEO Program Manager regarding the bulletin and his 2002
demotion. The EEO Program Manager indicated that she would conduct
an inquiry into the matter and would meet with complainant after a few
weeks to discuss her findings. Therefore, we find that complainant made
contact and exhibited an intent to begin the EEO process. Furthermore,
we find that the agency's EEO Program Manager is an individual logically
connected to the EEO process. Therefore, notwithstanding February 15,
2005 date reflected in the EEO Counselor's report, we determine that
complainant's contact with the EEO Program Manager in December 2004 is
sufficient to establish initial EEO Counselor contact, and that this
contact is timely.
Accordingly, the agency's final decision dismissing the complaint is
reversed. The complaint is hereby remanded to the agency for further
processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. § 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. § 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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
December 21, 2005
__________________
Date
01A55288
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036 | [
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"Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)",
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424 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A62357.txt | 01A62357.txt | TXT | text/plain | 13,074 | Johnson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. | January 30, 2006 | Appeal Number: 01A62357
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 30, 2006, dismissing her formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq.
On September 14, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On October 29, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race (African-American), sex
(female), and age (D.O.B. 8/6/47).
On January 30, 2006, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claims:
a. on July 21, 2005, complainant was issued a written counseling for
"unprofessional and discourteous" behavior toward her supervisor;
b. on Fridays, since December 17, 2000, she was assigned to cover clinics
of the social workers who were on compressed work schedule;
c. she was not notified of an opening for the position of Social Worker,
GS-185-11, under Vacancy Announcement No. ATL-05-01-024JW (closing date
2/15/05);
d. she was subjected to harassment in one or more of the following
incidents:
1. since December 17, 2000, her supervisor made "inappropriate comments
towards her;
2. her supervisor made "sarcastic remarks" and informed her that "he
was the supervisor and what he says goes;"
3. her supervisor "often" threatened to reassign her to the Nursing
Home Care Unit (NHCU);
4. her supervisor has "trouble dealing with African-American females
who are assertive;"
5. her supervisor "often insulted" her when she refused to sign for
coverage;
6. her supervisor "demands to be placed on a pedestal but treats his
workers (90% of whom are females) like dirt;"
7. her supervisor "lacks compassion and understanding" of the needs of
his employees;
8. her supervisor is "often argumentative and cuts down opportunities
to improve" her department;
9. her supervisor told her in front of a union representative that she
would not be promoted unless she obtained "LCSW licensure;" and
10. her supervisor was "non-supportive" of her endeavor to promote
"a cost-effective measure designed to save money for" the agency while
providing "preventative information to veterans who were facing some
type of loss of limb."
e. female social workers were being paid less than male social workers
(Equal Pay) (amended claim);
f. her supervisor did not provide her with "an appropriate evaluation
based upon performance measures, productivity, and accountability
(amended claim);" and
g. her supervisor "forced" her to work in an unsafe office despite her
request to be moved to another office (amended claim).
First, the agency dismissed complainant's amended claims (claims (e) -
(g)), finding that complainant did not undergo EEO counseling regarding
these claims and that they were not like or related to the matters for
which complainant underwent EEO counseling.
The agency next dismissed claims (a) - (c) pursuant to 29 C.F.R. §
1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The agency determined that complainant's initial EEO contact occurred on
September 14, 2005, which it found to be beyond the 45-day limitation
period. The agency further determined that complainant had or should
have had reasonable suspicion of unlawful employment discrimination
prior to September 14, 2005. The agency determined that complainant
was aware of the 45-day limitation period because she attended two EEO
training sessions on May 16, 2001 and June 14, 2002. The agency stated
that when inquired by the EEO Counselor concerning her untimely EEO
Counselor contact, complainant stated that she "decided to file after
many incidents occurred." The agency determined that according to the
EEO Counselor, complainant stated that she "tried to work things out
with management before contacting our office." Furthermore, the agency
determined that EEO posters addressing the 45-day requisite time period
were on display in complainant's workplace.
Finally, regarding claim (d), the agency dismissed this claim pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim finding that
complainant was not aggrieved regarding the matters identified therein.
Claims (e) - (g)
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency
shall dismiss a claim that addresses a matter that has not been brought
to the attention of an EEO Counselor and that is not like or related to
a matter that has been brought to the attention of an EEO Counselor
The Commission agrees with the agency's dismissal of the additional
claims (claims e - g) raised in the instant complaint. Complainant did
not undergo EEO counseling regarding these claims and they are not like
or related to matters for which complainant underwent EEO counseling.
Claims (a) - (c)
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 properly dismissed claims (a)
- (c) on the grounds of untimely EEO Counselor contact. The alleged
discriminatory events occurred on December 17, 2000, July 21, 2005 and
February 15, 2005, but complainant did not initiate contact with an EEO
Counselor until September 14, 2005, which was beyond the forty-five (45)
day limitation period.
Moreover, the record contains a copy of the EEO Manager's memorandum
dated June 4, 2004. Therein, the EEO Manager stated that EEO posters
outlining the 45-day requisite time period were on displayed on bulletin
boards in various areas frequented by agency employees. In support of
her assertion, the EEO Manager submitted a picture of the EEO poster
and the Office of Resolution Management Discrimination Process poster
outlining the 45-day requisite time 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. 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 she should
have contacted the EEO office within forty-five days. Complainant has
failed to provide sufficient justification for extending or tolling the
time limitation.
Claim (d)
The alleged incidents identified in this claim do not address a personal
loss or harm regarding a term, condition or privilege of complainant's
employment as a result of the alleged incidents, and are not of a
type reasonably likely to deter complainant or others from engaging
in protected activity. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Moreover, a review of
the record reflects that the matters in question are insufficient to
support a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Therefore, we find that
the agency properly dismissed claim (d) for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
Final Decision:
Accordingly, the agency's final decision dismissing the instant complaint was proper and is AFFIRMED. | Deborah A. Davis-Johnson,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A62357
Agency No. 2001-0508-2005103878
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 30, 2006, dismissing her formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq.
On September 14, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On October 29, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race (African-American), sex
(female), and age (D.O.B. 8/6/47).
On January 30, 2006, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claims:
a. on July 21, 2005, complainant was issued a written counseling for
"unprofessional and discourteous" behavior toward her supervisor;
b. on Fridays, since December 17, 2000, she was assigned to cover clinics
of the social workers who were on compressed work schedule;
c. she was not notified of an opening for the position of Social Worker,
GS-185-11, under Vacancy Announcement No. ATL-05-01-024JW (closing date
2/15/05);
d. she was subjected to harassment in one or more of the following
incidents:
1. since December 17, 2000, her supervisor made "inappropriate comments
towards her;
2. her supervisor made "sarcastic remarks" and informed her that "he
was the supervisor and what he says goes;"
3. her supervisor "often" threatened to reassign her to the Nursing
Home Care Unit (NHCU);
4. her supervisor has "trouble dealing with African-American females
who are assertive;"
5. her supervisor "often insulted" her when she refused to sign for
coverage;
6. her supervisor "demands to be placed on a pedestal but treats his
workers (90% of whom are females) like dirt;"
7. her supervisor "lacks compassion and understanding" of the needs of
his employees;
8. her supervisor is "often argumentative and cuts down opportunities
to improve" her department;
9. her supervisor told her in front of a union representative that she
would not be promoted unless she obtained "LCSW licensure;" and
10. her supervisor was "non-supportive" of her endeavor to promote
"a cost-effective measure designed to save money for" the agency while
providing "preventative information to veterans who were facing some
type of loss of limb."
e. female social workers were being paid less than male social workers
(Equal Pay) (amended claim);
f. her supervisor did not provide her with "an appropriate evaluation
based upon performance measures, productivity, and accountability
(amended claim);" and
g. her supervisor "forced" her to work in an unsafe office despite her
request to be moved to another office (amended claim).
First, the agency dismissed complainant's amended claims (claims (e) -
(g)), finding that complainant did not undergo EEO counseling regarding
these claims and that they were not like or related to the matters for
which complainant underwent EEO counseling.
The agency next dismissed claims (a) - (c) pursuant to 29 C.F.R. §
1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The agency determined that complainant's initial EEO contact occurred on
September 14, 2005, which it found to be beyond the 45-day limitation
period. The agency further determined that complainant had or should
have had reasonable suspicion of unlawful employment discrimination
prior to September 14, 2005. The agency determined that complainant
was aware of the 45-day limitation period because she attended two EEO
training sessions on May 16, 2001 and June 14, 2002. The agency stated
that when inquired by the EEO Counselor concerning her untimely EEO
Counselor contact, complainant stated that she "decided to file after
many incidents occurred." The agency determined that according to the
EEO Counselor, complainant stated that she "tried to work things out
with management before contacting our office." Furthermore, the agency
determined that EEO posters addressing the 45-day requisite time period
were on display in complainant's workplace.
Finally, regarding claim (d), the agency dismissed this claim pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim finding that
complainant was not aggrieved regarding the matters identified therein.
Claims (e) - (g)
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the agency
shall dismiss a claim that addresses a matter that has not been brought
to the attention of an EEO Counselor and that is not like or related to
a matter that has been brought to the attention of an EEO Counselor
The Commission agrees with the agency's dismissal of the additional
claims (claims e - g) raised in the instant complaint. Complainant did
not undergo EEO counseling regarding these claims and they are not like
or related to matters for which complainant underwent EEO counseling.
Claims (a) - (c)
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 properly dismissed claims (a)
- (c) on the grounds of untimely EEO Counselor contact. The alleged
discriminatory events occurred on December 17, 2000, July 21, 2005 and
February 15, 2005, but complainant did not initiate contact with an EEO
Counselor until September 14, 2005, which was beyond the forty-five (45)
day limitation period.
Moreover, the record contains a copy of the EEO Manager's memorandum
dated June 4, 2004. Therein, the EEO Manager stated that EEO posters
outlining the 45-day requisite time period were on displayed on bulletin
boards in various areas frequented by agency employees. In support of
her assertion, the EEO Manager submitted a picture of the EEO poster
and the Office of Resolution Management Discrimination Process poster
outlining the 45-day requisite time 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. 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 she should
have contacted the EEO office within forty-five days. Complainant has
failed to provide sufficient justification for extending or tolling the
time limitation.
Claim (d)
The alleged incidents identified in this claim do not address a personal
loss or harm regarding a term, condition or privilege of complainant's
employment as a result of the alleged incidents, and are not of a
type reasonably likely to deter complainant or others from engaging
in protected activity. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Moreover, a review of
the record reflects that the matters in question are insufficient to
support a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Therefore, we find that
the agency properly dismissed claim (d) for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
Accordingly, the agency's final decision dismissing the instant complaint
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
July 6, 2006
__________________
Date
01A62357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
01A62357
01A62357 | [
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425 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120143076.txt | 0120143076.txt | TXT | text/plain | 14,882 | Laurice S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. | August 1, 2014 | Appeal Number: 0120143076
Background:
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (VN-3) at the Agency's West Los Angeles Veterans Administration Medical Center ("VAMC"), in West Los Angeles, California.
On June 20, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity (Agency No. 200P-0691-2014102310, brought July 26, 2012 resolved via settlement agreement October 2, 2012) when:
1. Between 2011 and 2013, Complainant was subjected to disparate treatment.
2. On May 15, 2012, Complainant was harassed after filing for leave under the Family Medical Leave Act (FLMA).
3. On August 20, 2012, Complainant did not receive clinical support.
4. On December 20, 2012, Complainant was demoted "due to deficits."
5. Subsequent to RMO1's request for submission of a self-evaluation on August 3, 2013, Complainant was not issued an evaluation for FY 2012.
6. Subsequent to RMO2's request for submission of a self-evaluation on April 16, 2013, Complainant was not issued an evaluation for FY 2013.
7. Between June 2012 and August 2013, Complainant was reprised against by the actions of RMO1 and RMO2.
8. Effective January 12, 2014, Complainant was reassigned to the position of RN/Nurse Case Manager in Administrative Medicine which included a reduced salary.
Complainant alleges that two supervisors ("RMO1" and "RMO2") routinely and maliciously harassed her. In 2012, among other things, she alleges that her unit was audited more than any other unit and that she was the only Nurse Manager who was demoted due to a "staffing issue." This demotion occurred after her repeated attempts to fill vacancies, and obtain additional staff, and RMO1 "maliciously" transferred one of Complainant's subordinates while Complainant was on vacation. Complainant alleges that RMO1 and RMO2 would not grant her leave and ignored her seniority when granting requests. In 2013, Complainant submitted her self evaluation twice at RMO2's request and did not receive either of her annual reviews.
On May 3, 2013, Complainant received a "Notice of Proposed Charges" and was detailed for "safety reasons." Complainant submitted a Freedom of Information Act ("FOIA") request so she could find out and respond to the charges. Upon receipt of the file, she was surprised to find documents dating back to 2011, including a complaint that had been lodged against her. She did not agree with the complaint, but was instructed to only respond to the Notice.
On December 11, 2013 the Medical Center Director issued Complainant a letter with the subject line, "Change in Assignment and Reduction in Basic Rate of Pay." Per the letter, on January 12, 2014, Complainant was reassigned from Head Nurse/Nurse Manager (VN-3, Step 13) to a non-managerial Staff Nurse (VN-3, Step 11) which translated to a loss of approximately $20,000 in gross annual income. The letter erroneously informed Complainant that she could appeal the reassignment to the Disciplinary Appeals Board ("DAB"). On February 7, 2014, DAB denied Complainant's appeal due to lack of jurisdiction, and recommend she appeal her reassignment through the Agency's administrative grievance procedure. Complainant filed the instant complaint on March 27, 2014 and an administrative grievance on April 10, 2014.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2) and 29 C.F.R. §1614.105(a)(1).
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states, 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. Under 29 C.F.R. §1614.105(a)(1) an aggrieved person must initiate contact with an EEC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
Complainant had knowledge of the time limit for contacting an EEO Counselor.
On appeal, Complainant contests the Agency's position (consistent with EEOC precedent) that due to her prior EEO activity, she was considered to have knowledge of the EEO process, including the 45 day time limit for contacting an EEO Counselor. 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 Williams v. Dep't of Homeland Security, EEOC Appeal No. 0120111236 (Oct. 4, 2011); Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. U.S. Postal Serv., EEOC Request No. 05980473(June 24, 1999) The record reflects that Complainant filed an EEO complaint an Agency EEO counselor on July 26, 2012 (resolved via settlement agreement October 2, 2012) alleging discriminatory acts that occurred in or around May and June 2012. While we sympathize with Complainant's explanation on appeal, that at the time of her first EEO activity she was "an emotional wreck full of anxiety, overwhelmed by fear;" she was still able to successfully engage in the EEO process prior to bringing the instant complaint. This is sufficient to show Complainant had constructive knowledge of the 45 day limitation period.
For Claim 8, Complainant also received express notice of the 45 day time limitation including the actual deadline to file when she received the "Change in Assignment and Reduction in Basic Rate of Pay" notice dated December 11, 2013, referenced above. Page 2 provided:
If you believe that this personnel action is based on discrimination because of your race, color, religion, sex, national origin, age, or handicap, you may file a complaint of discrimination with VA in accordance with Office of Resolution Management (ORM) discrimination complaint procedures. Should you elect to do so, you may appeal this action by contacting ORM at 1-888-737-3361 within 45 calendar days of the date you receive this letter. (emphasis original)
The record reflects, and Complainant confirmed that she received the letter on December 17, 2013. We find Complainant had knowledge that she had to contact an EEO counselor no later than January 13, 2014 (the 45th day, January 11, 2014, fell on a Saturday) if she wanted being a claim of discrimination concerning her reassignment.2
Reasonable suspicion of discrimination existed for more than 45 days prior to EEO contact.
The Commission has adopted a "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 not triggered until a complainant reasonably suspects discrimination, 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)) The Commission has consistently held that a complainant must act with due diligence in the pursuit of their claim or the doctrine of laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting· an EEO Counselor); O'Dell v. Dep't of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990) The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his or her claim.
Claims 1, 2, 3, 4, and 7 in the instant complaint all allege discriminatory acts that occurred either around the same time of the alleged discriminatory acts in Complainant's prior EEO claim, or during her engagement in the EEO process and resolution of that EEO claim. Complainant explicitly links the instant complaint to her prior EEO activity by identifying it as the basis of her retaliation claim. Additionally, both of Complainant's complaints are (in part) based on racial discrimination. We find the timing and common basis for discrimination sufficient evidence that reasonable suspicion discrimination existed on or around the time the alleged acts occurred.
Reasonable suspicion of discrimination also existed on or around the time the alleged discriminatory actions in Claims 5 and 6, which took place during or around the time of ongoing discrimination described in Claims 1 and 7. In addition to sharing the same bases of discrimination, Claims 5 and 6 name the same RMOs who Complainant alleges regularly discriminated against her for over a year in Claim 7. Complainant provides numerous specific details in the record that also reference RMO1 and RMO2 supporting her claims. Based on Complainant's experiences with RMO1 and RMO2 prior and during the discriminatory actions described in Claims 5 and 6, we find reasonable suspicion of discrimination existed when they occurred, over a year before Complainant initiated EEO contact.
Alternatively, Complainant is time barred from further pursuing Claims 1 through 7 under the doctrine of latches.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Laurice S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120143076
Agency No. 200P06912014102310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 1, 2014, 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 Registered Nurse (VN-3) at the Agency's West Los Angeles Veterans Administration Medical Center ("VAMC"), in West Los Angeles, California.
On June 20, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity (Agency No. 200P-0691-2014102310, brought July 26, 2012 resolved via settlement agreement October 2, 2012) when:
1. Between 2011 and 2013, Complainant was subjected to disparate treatment.
2. On May 15, 2012, Complainant was harassed after filing for leave under the Family Medical Leave Act (FLMA).
3. On August 20, 2012, Complainant did not receive clinical support.
4. On December 20, 2012, Complainant was demoted "due to deficits."
5. Subsequent to RMO1's request for submission of a self-evaluation on August 3, 2013, Complainant was not issued an evaluation for FY 2012.
6. Subsequent to RMO2's request for submission of a self-evaluation on April 16, 2013, Complainant was not issued an evaluation for FY 2013.
7. Between June 2012 and August 2013, Complainant was reprised against by the actions of RMO1 and RMO2.
8. Effective January 12, 2014, Complainant was reassigned to the position of RN/Nurse Case Manager in Administrative Medicine which included a reduced salary.
Complainant alleges that two supervisors ("RMO1" and "RMO2") routinely and maliciously harassed her. In 2012, among other things, she alleges that her unit was audited more than any other unit and that she was the only Nurse Manager who was demoted due to a "staffing issue." This demotion occurred after her repeated attempts to fill vacancies, and obtain additional staff, and RMO1 "maliciously" transferred one of Complainant's subordinates while Complainant was on vacation. Complainant alleges that RMO1 and RMO2 would not grant her leave and ignored her seniority when granting requests. In 2013, Complainant submitted her self evaluation twice at RMO2's request and did not receive either of her annual reviews.
On May 3, 2013, Complainant received a "Notice of Proposed Charges" and was detailed for "safety reasons." Complainant submitted a Freedom of Information Act ("FOIA") request so she could find out and respond to the charges. Upon receipt of the file, she was surprised to find documents dating back to 2011, including a complaint that had been lodged against her. She did not agree with the complaint, but was instructed to only respond to the Notice.
On December 11, 2013 the Medical Center Director issued Complainant a letter with the subject line, "Change in Assignment and Reduction in Basic Rate of Pay." Per the letter, on January 12, 2014, Complainant was reassigned from Head Nurse/Nurse Manager (VN-3, Step 13) to a non-managerial Staff Nurse (VN-3, Step 11) which translated to a loss of approximately $20,000 in gross annual income. The letter erroneously informed Complainant that she could appeal the reassignment to the Disciplinary Appeals Board ("DAB"). On February 7, 2014, DAB denied Complainant's appeal due to lack of jurisdiction, and recommend she appeal her reassignment through the Agency's administrative grievance procedure. Complainant filed the instant complaint on March 27, 2014 and an administrative grievance on April 10, 2014.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2) and 29 C.F.R. §1614.105(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states, 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. Under 29 C.F.R. §1614.105(a)(1) an aggrieved person must initiate contact with an EEC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
Complainant had knowledge of the time limit for contacting an EEO Counselor.
On appeal, Complainant contests the Agency's position (consistent with EEOC precedent) that due to her prior EEO activity, she was considered to have knowledge of the EEO process, including the 45 day time limit for contacting an EEO Counselor. 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 Williams v. Dep't of Homeland Security, EEOC Appeal No. 0120111236 (Oct. 4, 2011); Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. U.S. Postal Serv., EEOC Request No. 05980473(June 24, 1999) The record reflects that Complainant filed an EEO complaint an Agency EEO counselor on July 26, 2012 (resolved via settlement agreement October 2, 2012) alleging discriminatory acts that occurred in or around May and June 2012. While we sympathize with Complainant's explanation on appeal, that at the time of her first EEO activity she was "an emotional wreck full of anxiety, overwhelmed by fear;" she was still able to successfully engage in the EEO process prior to bringing the instant complaint. This is sufficient to show Complainant had constructive knowledge of the 45 day limitation period.
For Claim 8, Complainant also received express notice of the 45 day time limitation including the actual deadline to file when she received the "Change in Assignment and Reduction in Basic Rate of Pay" notice dated December 11, 2013, referenced above. Page 2 provided:
If you believe that this personnel action is based on discrimination because of your race, color, religion, sex, national origin, age, or handicap, you may file a complaint of discrimination with VA in accordance with Office of Resolution Management (ORM) discrimination complaint procedures. Should you elect to do so, you may appeal this action by contacting ORM at 1-888-737-3361 within 45 calendar days of the date you receive this letter. (emphasis original)
The record reflects, and Complainant confirmed that she received the letter on December 17, 2013. We find Complainant had knowledge that she had to contact an EEO counselor no later than January 13, 2014 (the 45th day, January 11, 2014, fell on a Saturday) if she wanted being a claim of discrimination concerning her reassignment.2
Reasonable suspicion of discrimination existed for more than 45 days prior to EEO contact.
The Commission has adopted a "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 not triggered until a complainant reasonably suspects discrimination, 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)) The Commission has consistently held that a complainant must act with due diligence in the pursuit of their claim or the doctrine of laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting· an EEO Counselor); O'Dell v. Dep't of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990) The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his or her claim.
Claims 1, 2, 3, 4, and 7 in the instant complaint all allege discriminatory acts that occurred either around the same time of the alleged discriminatory acts in Complainant's prior EEO claim, or during her engagement in the EEO process and resolution of that EEO claim. Complainant explicitly links the instant complaint to her prior EEO activity by identifying it as the basis of her retaliation claim. Additionally, both of Complainant's complaints are (in part) based on racial discrimination. We find the timing and common basis for discrimination sufficient evidence that reasonable suspicion discrimination existed on or around the time the alleged acts occurred.
Reasonable suspicion of discrimination also existed on or around the time the alleged discriminatory actions in Claims 5 and 6, which took place during or around the time of ongoing discrimination described in Claims 1 and 7. In addition to sharing the same bases of discrimination, Claims 5 and 6 name the same RMOs who Complainant alleges regularly discriminated against her for over a year in Claim 7. Complainant provides numerous specific details in the record that also reference RMO1 and RMO2 supporting her claims. Based on Complainant's experiences with RMO1 and RMO2 prior and during the discriminatory actions described in Claims 5 and 6, we find reasonable suspicion of discrimination existed when they occurred, over a year before Complainant initiated EEO contact.
Alternatively, Complainant is time barred from further pursuing Claims 1 through 7 under the doctrine of latches.
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.
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 2016
__________________
Date
2 Even if Complainant calculated the 45 day limitation period based on the effective date of the personnel action (January 12, 2014), in accordance with EEOC Regulation 29 C.F.R. §1614.105(a)(1), the EEO contact deadline for Claim 8 would fall on February 26, 2014, which is still prior to Complainant's EEO contact date.
------------------------------------------------------------
------------------------------------------------------------
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426 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120182439.txt | 0120182439.txt | TXT | text/plain | 20,089 | Iris D.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food and Nutrition Service), Agency. | June 12, 2018 | Appeal Number: 0120182439
Background:
At the time of events giving rise to this complaint, Complainant worked as a Senior Human Resources Technical Advisor, GS-0343-14, at the Agency's Food and Nutrition Service in Washington, District of Columbia.
On March 7, 2018, Complainant initiated informal EEO counseling, alleging harassment and discrimination relating to the occurrence of a series of incidents involving members of the Agency's management. The matter was not resolved informally and, on April 10, 2018, the EEO counselor sent Complainant a Notice of Right to File a formal EEO complaint (NRF), by certified mail.
Complainant alleges that, on April 30, 2018, she contacted the EEO counselor, as she had not received the NRF. The EEO Counselor checked the postal tracking data, which indicated attempted deliveries of the NRF on April 13, 2018 and April 16, 2018. Complainant indicated she would go to the post office that day, April 30, 2018, and inform the EEO counselor by the next morning if she had been able to retrieve the NRF. Complainant received the NRF that evening at the post office. Complainant sent a letter notifying the EEO counselor the following day, May 1, 2018. The EEO counselor replied on May 2, 2018 that Complainant's 15 calendar days to submit her formal complaint started on May 1, 2018.
On May 16, 2018, Complainant filed a formal complaint against the Agency. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency reasoned that Complainant received the NRF on April 30, 2018 and the formal complaint should have been filed on or before May 15, 2018, in order to meet the 15-day filing deadline. Complainant's formal complaint was, therefore, one (1) day untimely.
In her formal complaint, Complainant alleged several instances of harassment and discrimination on the bases of color (dark skin) and reprisal for prior protected EEO activity.2 She alleged that, beginning on November 22, 2017, the Deputy Administrator for Management and Acting Human Resources Director, challenged and questioned the HR programs under Complainant's oversight. She also alleged that on February 5, 2018, the Deputy Administrator for Management temporarily promoted or "detailed" a co-worker (not of color) into the position of Acting Human Resources Director without giving her the opportunity to compete for that position. She asserted that since February 5, 2018, the Acting Human Resources Director has changed Complainant's duties, responsibilities, and working conditions; has refused to include her in meetings and assignments; has not had conversations with her; and sends work assignments after work hours in the late evening. Finally, Complainant alleged that on March 19, 2018, the Acting Human Resources Director issued Complainant a Letter of Reprimand.
The EEO counselor's report indicates that Complainant believed the alleged harassment and discrimination were in retaliation for Complainant serving as a witness in an EEO investigation relating to alleged discrimination against the former Human Resources Director, who had resigned on February 2, 2018. It includes a letter of resignation, dated February 2, 2018, from the former Human Resources Director to the Deputy Administrator for Management, alleging workplace harassment and discrimination based on gender (female) and ethnicity (Hispanic).
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In so doing, the Agency found Complainant alleged discrimination based on color (dark skinned) and reprisal (whistleblower activity) when: (1) on February 5, 2018, management denied her the opportunity to serve as the Acting Human Resources Director; and (2) on March 19, 2018, management issued her a Letter of Reprimand. The Agency found that Complainant alleged she had been subjected to reprisal-based discrimination due to her whistleblower activity and her participation in a management inquiry, neither of which was protected activity under EEO regulations. The Agency further noted there was no showing that Complainant participated in the EEO process before her initial contact with the EEO counselor. The Agency, therefore, dismissed the complaint.
The instant appeal followed. On appeal, with respect to the dismissal based on untimeliness of the filing of the formal complaint, Complainant asserts that equitable estoppel should apply, as Complainant reasonably relied on the incorrect advice of the EEO counselor and the Agency should not be allowed to benefit from the misinformation provided to Complainant. The EEO counselor indicated May 1, 2018 was the start date of the 15-day period with the knowledge that Complainant received the Notice of Right to File on April 30, 2018. Complainant has submitted copies of email correspondence with the EEO counselor supporting Complainant's assertions, including the email showing the EEO counselor indicated that the 15-day period would begin May 1, 2018.
With respect to the dismissal for failure to state a claim, Complainant asserts that her reprisal claims are based on prior EEO or other activity protected by Title VII. She specifically identifies two such activities. First, she was a witness in an active informal EEO case involving her first and second level supervisors, which was filed on or around November 10, 2017, prior to her initial contact with the EEO counselor on December 6, 2017. Second, she asserts she reported allegations of harassment/hostile work environment on or around December 6, 2017 to the EEO counselor, after which she was involved in the investigation that included the "Management Inquiry" discussed above and subjected to retaliation, including the issuance of the March 19, 2018 Letter of Reprimand discussed above.
Legal Analysis:
Upon review of the record, we find that the record establishes Complainant received the NRF on April 30, 2018. However, we find equitable estoppel is applicable in the instant case. Equitable estoppel is the principle by which a party is precluded by his own acts, words, or silence from asserting a right to which he otherwise would be entitled against another who rightfully relied on the party's acts, words, or silence to his detriment." Jackson v. U.S. Postal Service, EEOC Appeal No. 01931557 (February 17, 1994) (citing A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1041 (Fed. Cir. 1992)). The record shows that Complainant reasonably relied upon the EEO counselor's statement that her 15-day time limit would begin to run on May 1, 2018. Under these circumstances, we conclude that complainant's formal complaint filed on May 16, 2018 was timely under the principles of equitable estoppel.
Failure 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
The Complainant alleged that the Agency subjected her to harassment and discrimination on the bases of color (dark skin color) and reprisal for prior protected EEO activity in several instances as noted above. However, the Agency did not address her allegations of harassment. 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 and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). 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, 510 U.S. at 21-22. Thus, 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.
Towards establishing her claim of harassment, Complainant alleged that on November 22, 2017, the Deputy Administrator for Management and Acting Human Resources Director challenged and questioned the HR programs under Complainant's oversight; and the Acting Human Resources Director has changed Complainant's duties, responsibilities, and working conditions, has refused to include her in meetings and assignments, has not had conversations with her, and sends work assignments after work hours in the late evening. We find these alleged incidents are sufficient, in conjunction with the claims concerning the denial of the opportunity to compete for the Acting Human Resources Director position and the March 2018 reprimand, to rise to the level of actionable harassment.
Therefore, we reverse the Agency's dismissal of the complaint and remand it back for investigation and further processing. As redefined, the complaint alleges that the Agency subjected Complainant to discrimination on the bases of color (dark skin) and reprisal for prior protected EEO activity when: (1) on February 5, 2018, the Deputy Administrator for Management temporarily promoted or "detailed" a co-worker (not of color) into the Acting Human Resources Director without giving Complainant the opportunity to complete for that position, (2) on March 19, 2018, the Acting Human Resources Director issued her a Letter of Reprimand, and (3) Complainant was subjected to ongoing harassment, including (in addition to claims 1 and 2) being challenged and questioned about the programs under her oversight, as well as the Acting Human Resources Director changing Complainant's duties, responsibilities, and working conditions, refusing to include her in meetings and assignments, not having conversations with her, and sending work assignments after work hours in the late evening. These allegations are sufficient to establish that Complainant is an "aggrieved employee" within the meaning of the regulations. | Iris D.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Food and Nutrition Service),
Agency.
Appeal No. 0120182439
Agency No. FNCS201800449
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 12, 2018, 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 Senior Human Resources Technical Advisor, GS-0343-14, at the Agency's Food and Nutrition Service in Washington, District of Columbia.
On March 7, 2018, Complainant initiated informal EEO counseling, alleging harassment and discrimination relating to the occurrence of a series of incidents involving members of the Agency's management. The matter was not resolved informally and, on April 10, 2018, the EEO counselor sent Complainant a Notice of Right to File a formal EEO complaint (NRF), by certified mail.
Complainant alleges that, on April 30, 2018, she contacted the EEO counselor, as she had not received the NRF. The EEO Counselor checked the postal tracking data, which indicated attempted deliveries of the NRF on April 13, 2018 and April 16, 2018. Complainant indicated she would go to the post office that day, April 30, 2018, and inform the EEO counselor by the next morning if she had been able to retrieve the NRF. Complainant received the NRF that evening at the post office. Complainant sent a letter notifying the EEO counselor the following day, May 1, 2018. The EEO counselor replied on May 2, 2018 that Complainant's 15 calendar days to submit her formal complaint started on May 1, 2018.
On May 16, 2018, Complainant filed a formal complaint against the Agency. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency reasoned that Complainant received the NRF on April 30, 2018 and the formal complaint should have been filed on or before May 15, 2018, in order to meet the 15-day filing deadline. Complainant's formal complaint was, therefore, one (1) day untimely.
In her formal complaint, Complainant alleged several instances of harassment and discrimination on the bases of color (dark skin) and reprisal for prior protected EEO activity.2 She alleged that, beginning on November 22, 2017, the Deputy Administrator for Management and Acting Human Resources Director, challenged and questioned the HR programs under Complainant's oversight. She also alleged that on February 5, 2018, the Deputy Administrator for Management temporarily promoted or "detailed" a co-worker (not of color) into the position of Acting Human Resources Director without giving her the opportunity to compete for that position. She asserted that since February 5, 2018, the Acting Human Resources Director has changed Complainant's duties, responsibilities, and working conditions; has refused to include her in meetings and assignments; has not had conversations with her; and sends work assignments after work hours in the late evening. Finally, Complainant alleged that on March 19, 2018, the Acting Human Resources Director issued Complainant a Letter of Reprimand.
The EEO counselor's report indicates that Complainant believed the alleged harassment and discrimination were in retaliation for Complainant serving as a witness in an EEO investigation relating to alleged discrimination against the former Human Resources Director, who had resigned on February 2, 2018. It includes a letter of resignation, dated February 2, 2018, from the former Human Resources Director to the Deputy Administrator for Management, alleging workplace harassment and discrimination based on gender (female) and ethnicity (Hispanic).
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In so doing, the Agency found Complainant alleged discrimination based on color (dark skinned) and reprisal (whistleblower activity) when: (1) on February 5, 2018, management denied her the opportunity to serve as the Acting Human Resources Director; and (2) on March 19, 2018, management issued her a Letter of Reprimand. The Agency found that Complainant alleged she had been subjected to reprisal-based discrimination due to her whistleblower activity and her participation in a management inquiry, neither of which was protected activity under EEO regulations. The Agency further noted there was no showing that Complainant participated in the EEO process before her initial contact with the EEO counselor. The Agency, therefore, dismissed the complaint.
The instant appeal followed. On appeal, with respect to the dismissal based on untimeliness of the filing of the formal complaint, Complainant asserts that equitable estoppel should apply, as Complainant reasonably relied on the incorrect advice of the EEO counselor and the Agency should not be allowed to benefit from the misinformation provided to Complainant. The EEO counselor indicated May 1, 2018 was the start date of the 15-day period with the knowledge that Complainant received the Notice of Right to File on April 30, 2018. Complainant has submitted copies of email correspondence with the EEO counselor supporting Complainant's assertions, including the email showing the EEO counselor indicated that the 15-day period would begin May 1, 2018.
With respect to the dismissal for failure to state a claim, Complainant asserts that her reprisal claims are based on prior EEO or other activity protected by Title VII. She specifically identifies two such activities. First, she was a witness in an active informal EEO case involving her first and second level supervisors, which was filed on or around November 10, 2017, prior to her initial contact with the EEO counselor on December 6, 2017. Second, she asserts she reported allegations of harassment/hostile work environment on or around December 6, 2017 to the EEO counselor, after which she was involved in the investigation that included the "Management Inquiry" discussed above and subjected to retaliation, including the issuance of the March 19, 2018 Letter of Reprimand discussed above.
ANALYSIS AND FINDINGS
Timeliness of the Formal Complaint
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, unless the agency extends the time limits in accordance with § 1614.604(c), which provides that the filing limitation period is subject to waiver, estoppel, and equitable tolling. Under 29 C.F.R. § 1614.106(b) a written complaint must be filed with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint.
Upon review of the record, we find that the record establishes Complainant received the NRF on April 30, 2018. However, we find equitable estoppel is applicable in the instant case. Equitable estoppel is the principle by which a party is precluded by his own acts, words, or silence from asserting a right to which he otherwise would be entitled against another who rightfully relied on the party's acts, words, or silence to his detriment." Jackson v. U.S. Postal Service, EEOC Appeal No. 01931557 (February 17, 1994) (citing A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1041 (Fed. Cir. 1992)). The record shows that Complainant reasonably relied upon the EEO counselor's statement that her 15-day time limit would begin to run on May 1, 2018. Under these circumstances, we conclude that complainant's formal complaint filed on May 16, 2018 was timely under the principles of equitable estoppel.
Failure 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
The Complainant alleged that the Agency subjected her to harassment and discrimination on the bases of color (dark skin color) and reprisal for prior protected EEO activity in several instances as noted above. However, the Agency did not address her allegations of harassment. 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 and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). 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, 510 U.S. at 21-22. Thus, 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.
Towards establishing her claim of harassment, Complainant alleged that on November 22, 2017, the Deputy Administrator for Management and Acting Human Resources Director challenged and questioned the HR programs under Complainant's oversight; and the Acting Human Resources Director has changed Complainant's duties, responsibilities, and working conditions, has refused to include her in meetings and assignments, has not had conversations with her, and sends work assignments after work hours in the late evening. We find these alleged incidents are sufficient, in conjunction with the claims concerning the denial of the opportunity to compete for the Acting Human Resources Director position and the March 2018 reprimand, to rise to the level of actionable harassment.
Therefore, we reverse the Agency's dismissal of the complaint and remand it back for investigation and further processing. As redefined, the complaint alleges that the Agency subjected Complainant to discrimination on the bases of color (dark skin) and reprisal for prior protected EEO activity when: (1) on February 5, 2018, the Deputy Administrator for Management temporarily promoted or "detailed" a co-worker (not of color) into the Acting Human Resources Director without giving Complainant the opportunity to complete for that position, (2) on March 19, 2018, the Acting Human Resources Director issued her a Letter of Reprimand, and (3) Complainant was subjected to ongoing harassment, including (in addition to claims 1 and 2) being challenged and questioned about the programs under her oversight, as well as the Acting Human Resources Director changing Complainant's duties, responsibilities, and working conditions, refusing to include her in meetings and assignments, not having conversations with her, and sending work assignments after work hours in the late evening. These allegations are sufficient to establish that Complainant is an "aggrieved employee" within the meaning of the regulations.
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 final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
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
September 20, 2018
__________________
Date
2 Complainant also alleged discrimination on the basis of reprisal for whistleblower activities, which is not covered by Title VII, as amended, 42 U.S.C. § 2000e et seq. and does not fall under the jurisdiction of the EEOC.
------------------------------------------------------------
------------------------------------------------------------
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427 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120182087.txt | 0120182087.txt | TXT | text/plain | 18,193 | Maximo S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. | May 9, 2018 | Appeal Number: 0120182087
Background:
At the time of events giving rise to this complaint, Complainant worked for the Agency as a Computer Engineer at the Program Executive Office for Simulation, Training and Instrumentation ("PEO STRI") in Orlando, Florida.
On April 18, 2018, Complainant filed a formal EEO complaint alleging that he was subjected to discrimination by the Agency on the basis of reprisal for engaging prior protected activity2 when:
On March 28, 2018, Complainant became aware that a full, un-redacted version of his formal complaint, from a prior EEO action ("the 2011 EEO Complaint") was in the PEO STRI common network drive ("shared drive") and could be viewed by his coworkers. It was determined that complainant's coworker ("C1") was responsible for uploading the 2011 EEO Complaint in December 2017, and that C1 was among several of Complainant's coworkers who received it as an email attachment from the PEO STRI Legal Counsel ("LC") in June 2012.
On April 6, 2011, Complainant filed the 2011 EEO Complaint, which alleged that his two supervisors ("S1" and "S2"), and C1 subjected him to discrimination and a hostile work environment. See Agency Case No. ARCESAV11JAN04975.
On June 18, 2012, LC, who was representing the Agency in response to Complainant's 2011 EEO Complaint, sent his full, nonredacted formal complaint as an email attachment S1, S2, C1, and another coworker ("C2") to testify as witnesses for the Agency, to refresh their recollection of the case. The full un-redacted 2011 EEO Complaint revealed, Complainant's social security number, personal contact information, his allegations against named management officials, and "a characterization of his mental state." Paragraph 38 specifies that because of the alleged discrimination and harassment, Complainant "suffered from depression, anxiety, stress, insomnia, [and had] difficulty concentrating."
In December 2017, C1 uploaded Complainant's full, nonredacted 2011 EEO Complaint, to the PEO STRI I: drive ("shared drive") in a folder labeled "[Complainant's first and last name] "litigation." Complainant's full complaint could be viewed and downloaded by anyone with access to the shared drive, including many of his coworkers, and management officials.
On March 28, 2018, Complainant found out about the folder from a coworker, and contacted the EEO Office. An EEO Investigator contacted LC, who stated that she was unaware that the material had been uploaded, and C1 who explained the upload had been accidental, attributing it to the PRO STRI office-wide transition to an updated Windows Platform. C1 removed the folder from the shared drive and deleted it. The EEO officer contacted appropriate IT staff to ensure Complainant's full, nonredacted 2011 EEO Complaint had been erased from the Agency's server and could no longer be accessed "as fast as was practicable" (9 days). Additionally, a meeting with both LC and C1 was arranged to discuss how to prevent such similar events from reoccurring in the future.
The Agency dismissed Complainant's complaint for failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1).
Alternately, the Agency determined that because it deleted Complainant's full nonredacted 2011 EEO Complaint from the server, Complainant's claim was moot pursuant to § 1614.107(a)(5).
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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
For claims of reprisal, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
The Agency characterizes LC's action as "mere notification of Agency personnel who were identified as potential witnesses in an EEO investigato[n] that their participation in the EEO process may be necessary and giving them the complaint so they may have their recollections refreshed prior to testifying in the investigation." The Agency reasons that it would be "absurd" for the instant complaint to state a claim, because it would "substantially hamper the Agency's ability to adequately investigate the complaint."
The Agency's argument does not apply here. We have previously recognized that a complaint alleging dissatisfaction with the processing of a previously filed complaint must be dismissed, and the matter should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint. See 29 C.F.R. § 1614.107(a)(8); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5 § IV.D, page 5-26 (Aug. 5, 2015). However, LC is not a neutral EEO investigator, but the Agency's Representative, acting in the course of preparing a case against Complainant's EEO complaint. Moreover, the "witnesses" she sent it to were named in Complainant's complaint as his alleged harassers. In addition, the appearance of a folder on the shared drive, entitled "[Complainant's first and last name] Litigation" containing his EEO complaint. Both actions are reasonably likely to deter protected activity. Complainant states a claim of reprisal.
Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. 29 C.F.R. §1614.101 This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to "insure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity. 29 C.F.R. §1614.102(5); Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), Vincent v. United States Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request to reconsider denied, EEOC Request No. 0520090654 (Dec. 16, 2010). When an Agency's action has a potentially chilling effect on use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the action violates the prohibition against interference with the EEO process.
Additionally, the Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record and there are only limited exceptions to this regulation. 29 C.F.R. § 1630.14. By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. Hampton v. United States Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis or symptoms is medical information that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630. See Hampton, supra; see also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997) at 17.
Complainant's statement that he "suffered from depression, anxiety, stress, insomnia, difficulty concentrating," located in Paragraph 38 of the nonredacted 2011 EEO Complaint constitutes medical information that must be treated as confidential as defined by the Rehabilitation Act. Complainant states a claim under the Rehabilitation Act.
We find that the prospect of Agency Counsel providing a complainant's alleged harassers with a copy of his or her entire EEO complaint, including highly personal information, is likely to have a chilling effect on a complainant's willingness to engage in the EEO process. Further, we find the act of making Complainant's 2011 EEO Complaint--including personal medical information--available to view and download from the shared drive likely to have a chilling effect on any individual that comes upon the folder in the shared drive. This also states a claim.
Given the facts alleged by Complainant, we further find the Agency's alternate grounds for dismissal under 29 C.F.R. § 1614.107(a)(5) does not apply. Among other things, if Complainant prevailed, he might be entitled to compensatory damages.
Final Decision:
Accordingly, the Agency's Final Decision dismissing Complainant's complaint is REVERSED. | Maximo S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120182087
Agency No. ARPEOSTRI18MAR01210
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's decision dated May 9, 2018, 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 worked for the Agency as a Computer Engineer at the Program Executive Office for Simulation, Training and Instrumentation ("PEO STRI") in Orlando, Florida.
On April 18, 2018, Complainant filed a formal EEO complaint alleging that he was subjected to discrimination by the Agency on the basis of reprisal for engaging prior protected activity2 when:
On March 28, 2018, Complainant became aware that a full, un-redacted version of his formal complaint, from a prior EEO action ("the 2011 EEO Complaint") was in the PEO STRI common network drive ("shared drive") and could be viewed by his coworkers. It was determined that complainant's coworker ("C1") was responsible for uploading the 2011 EEO Complaint in December 2017, and that C1 was among several of Complainant's coworkers who received it as an email attachment from the PEO STRI Legal Counsel ("LC") in June 2012.
On April 6, 2011, Complainant filed the 2011 EEO Complaint, which alleged that his two supervisors ("S1" and "S2"), and C1 subjected him to discrimination and a hostile work environment. See Agency Case No. ARCESAV11JAN04975.
On June 18, 2012, LC, who was representing the Agency in response to Complainant's 2011 EEO Complaint, sent his full, nonredacted formal complaint as an email attachment S1, S2, C1, and another coworker ("C2") to testify as witnesses for the Agency, to refresh their recollection of the case. The full un-redacted 2011 EEO Complaint revealed, Complainant's social security number, personal contact information, his allegations against named management officials, and "a characterization of his mental state." Paragraph 38 specifies that because of the alleged discrimination and harassment, Complainant "suffered from depression, anxiety, stress, insomnia, [and had] difficulty concentrating."
In December 2017, C1 uploaded Complainant's full, nonredacted 2011 EEO Complaint, to the PEO STRI I: drive ("shared drive") in a folder labeled "[Complainant's first and last name] "litigation." Complainant's full complaint could be viewed and downloaded by anyone with access to the shared drive, including many of his coworkers, and management officials.
On March 28, 2018, Complainant found out about the folder from a coworker, and contacted the EEO Office. An EEO Investigator contacted LC, who stated that she was unaware that the material had been uploaded, and C1 who explained the upload had been accidental, attributing it to the PRO STRI office-wide transition to an updated Windows Platform. C1 removed the folder from the shared drive and deleted it. The EEO officer contacted appropriate IT staff to ensure Complainant's full, nonredacted 2011 EEO Complaint had been erased from the Agency's server and could no longer be accessed "as fast as was practicable" (9 days). Additionally, a meeting with both LC and C1 was arranged to discuss how to prevent such similar events from reoccurring in the future.
The Agency dismissed Complainant's complaint for failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1).
Alternately, the Agency determined that because it deleted Complainant's full nonredacted 2011 EEO Complaint from the server, Complainant's claim was moot pursuant to § 1614.107(a)(5).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. § 1614.107(a)(1) provides 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
For claims of reprisal, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
The Agency characterizes LC's action as "mere notification of Agency personnel who were identified as potential witnesses in an EEO investigato[n] that their participation in the EEO process may be necessary and giving them the complaint so they may have their recollections refreshed prior to testifying in the investigation." The Agency reasons that it would be "absurd" for the instant complaint to state a claim, because it would "substantially hamper the Agency's ability to adequately investigate the complaint."
The Agency's argument does not apply here. We have previously recognized that a complaint alleging dissatisfaction with the processing of a previously filed complaint must be dismissed, and the matter should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint. See 29 C.F.R. § 1614.107(a)(8); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5 § IV.D, page 5-26 (Aug. 5, 2015). However, LC is not a neutral EEO investigator, but the Agency's Representative, acting in the course of preparing a case against Complainant's EEO complaint. Moreover, the "witnesses" she sent it to were named in Complainant's complaint as his alleged harassers. In addition, the appearance of a folder on the shared drive, entitled "[Complainant's first and last name] Litigation" containing his EEO complaint. Both actions are reasonably likely to deter protected activity. Complainant states a claim of reprisal.
Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. 29 C.F.R. §1614.101 This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to "insure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity. 29 C.F.R. §1614.102(5); Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), Vincent v. United States Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request to reconsider denied, EEOC Request No. 0520090654 (Dec. 16, 2010). When an Agency's action has a potentially chilling effect on use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the action violates the prohibition against interference with the EEO process.
Additionally, the Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record and there are only limited exceptions to this regulation. 29 C.F.R. § 1630.14. By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. Hampton v. United States Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis or symptoms is medical information that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630. See Hampton, supra; see also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997) at 17.
Complainant's statement that he "suffered from depression, anxiety, stress, insomnia, difficulty concentrating," located in Paragraph 38 of the nonredacted 2011 EEO Complaint constitutes medical information that must be treated as confidential as defined by the Rehabilitation Act. Complainant states a claim under the Rehabilitation Act.
We find that the prospect of Agency Counsel providing a complainant's alleged harassers with a copy of his or her entire EEO complaint, including highly personal information, is likely to have a chilling effect on a complainant's willingness to engage in the EEO process. Further, we find the act of making Complainant's 2011 EEO Complaint--including personal medical information--available to view and download from the shared drive likely to have a chilling effect on any individual that comes upon the folder in the shared drive. This also states a claim.
Given the facts alleged by Complainant, we further find the Agency's alternate grounds for dismissal under 29 C.F.R. § 1614.107(a)(5) does not apply. Among other things, if Complainant prevailed, he might be entitled to compensatory damages.
CONCLUSION
Accordingly, the Agency's Final Decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with this Decision and the following Order.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
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 31, 2018
__________________
Date
2 A fair reading of the record indicates that Complainant is also alleging a violation of the Rehabilitation Act, based on his statement that the Agency improperly disclosed "a characterization of [his] mental state," and because the document at issue contains personal health information concerning disabling conditions.
------------------------------------------------------------
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"Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999)",
"Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007)",
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428 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983169.txt | 01983169.txt | TXT | text/plain | 16,860 | February 26, 1998 | Appeal Number: 01983169
Legal Analysis:
The Commission finds that appellant believed he had commenced the
EEO process by filing a complaint with the Chief, Diversity Office
on December 27, 1994. The agency does not claim that the Chief gave
appellant written rights during his meeting with the Chief which
would have explained the EEO process. The agency does not claim that
appellant ever signed any document indicating that he was withdrawing
the EEO matter. The agency does not claim that the agency ever sent
appellant a letter informing him that the matter was closed. Although the
Chief asserts that appellant stated that he did not wish to pursue EEO
counseling, the Chief was in possession, in December 1994, of specific
allegations of discrimination made by appellant in a document entitled
"EEO Complaint." The Chief admits that she never handed appellant the
"forms relative to entering into counseling." Appellant argues that
he would have met with an EEO Counselor if he knew of the necessity of
making such contact. The different recollections by appellant and the
Chief as to whether appellant was advised of the necessity of counseling
can not be reconciled. Given that appellant submitted the "EEO complaint"
we find that under the circumstances the record sufficiently shows that
appellant evinced the necessary intent to commence the EEO process on
December 27, 1994.
The next question is whether appellant is barred by the doctrine of laches
for not pursuing these claims until October 1997. Once appellant seeks
EEO counseling the agency is required to provide EEO counseling pursuant
to §1614.105. The agency never provided counseling in this instance
(prior to October 1997) and there is no indication that appellant was
ever informed of his rights or of what time frames he could expect any
action by the agency. There is nothing in the record to indicate that
appellant pursued the matter after his initial contact in December 27,
1994 and subsequent meetings at unspecified times (described as "shortly
thereafter" by the Chief) until he filed October 1997 document. Although
the Commission is troubled by appellant's failure to pursue the matter
until October 1997, the Commission finds that because of appellant's not
unreasonable presumption that he had filed a complaint and because of the
agency's failure to provide written information to appellant about the
complaint process and the time frames for agency actions in the process,
appellant is not barred by the doctrine of laches from raising these
matters in his October 1997 contact of an EEO Counselor. Therefore, we
find that the agency improperly dismissed the portion of the December 5,
1997 complaint which raised the allegations contained in the December 27,
1994 document.
The Commission notes that the Commission is not deciding in this decision
whether appellant was timely in his initial EEO contact on December
27, 1994 regarding the allegations contained in the December 27, 1994
document. The agency did not define the allegations in the December 27,
1994 document and did not dismiss the allegations raised in the December
27, 1994 document for untimely EEO Counselor contact.
Allegations Specifically Listed in the October 1997 Document
The Commission finds that the agency's decision dismissing allegations 1 -
11 for untimely EEO Counselor contact is proper pursuant to §1614.107(b).
These allegations concern: (1) attempt to expedite resignation; (2)
denial of suggestion; (3) no resolution to appraisal rebuttal; (4)
subject to investigation; (5) vicious rumors and racial innuendos;
(6) resubmission of suggestion returned; (7) memorandum regarding
communication skills; (8) performance appraisal; (9) delay in receipt
of award; (10) more rumors and innuendos; and (11) management official
met with appellant's subordinates in order to discuss their concerns
about appellant's management skills. Appellant has not challenged the
agency's framing of the complaint. These allegations are not timely
under the continuing violation theory, because the Commission finds
that appellant should have reasonably suspected discrimination regarding
the eleven allegations at issue at the time of the incidents which all
occurred more than 45 days before appellant contacted an EEO Counselor.
Furthermore, appellant has not provided a sufficient reason to equitably
toll the time limits for contacting an EEO Counselor.
The agency's decision dismissing allegations 1 - 11 is AFFIRMED.
The agency's decision dismissing the allegations raised in the December
27, 1994 document is REVERSED and we REMAND these allegations to the
agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (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. | George Colebrook, Jr., )
Appellant, )
)
v. ) Appeal No. 01983169
) Agency No. 98-4052
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
February 26, 1998 dismissing a portion of appellant's complaint.
The February 26, 1998 decision concerned a complaint filed by appellant,
according to the agency, on December 5, 1997. The record shows that
appellant filed a document dated October 1997 that appellant described
as an EEO Complaint. The allegations in the December 5, 1997 complaint
are apparently comprised of the allegations stated in the October
1997 document. The October 1997 document is not a separate complaint,
but was apparently filed by appellant prior to (or in conjunction with)
receipt of EEO counseling on the instant matter.
The instant complaint discusses events occurring from November 14,
1994 to October 1997. The agency, in the February 26, 1998 decision,
found that the December 5, 1997 complaint (via the allegations raised
in the document dated October 1997) was attempting to incorporate the
allegations raised by appellant on December 27, 1994.
The agency found that appellant originally contacted the EEO Office on
December 27, 1994. The record shows that appellant filed a document on
December 27, 1994 with the EEO Office which is labeled by appellant as:
"EEO Complaint." There is no indication that appellant received EEO
counseling prior to filing the December 27, 1994 document. The agency
found in the February 26, 1998 decision that appellant failed to pursue
the allegations raised in the December 27, 1994 document and attempted
to resurrect the allegations via contact of an EEO Counselor on October
17, 1997. The agency found that the allegations raised in the December
27, 1994 document are barred by the doctrine of laches.
In the February 26, 1998 decision the agency found that apart from the
allegations raised in the December 27, 1994 document, appellant raised
12 allegations. The agency dismissed allegations 1 - 11 for untimely
EEO Counselor contact pursuant to 29 C.F.R. §1614.107(b) and accepted
allegation 12 for investigation.
Allegations Raised Via the Document Dated December 27, 1994
The agency has provided a statement from the Chief, Diversity Office.
The Chief stated that appellant provided her with an informal complaint
on December 27, 1994. The Chief explained:
[Appellant] came to see me with a written memo stating [that] he wanted to
file a complaint. . . . I told [appellant] that since he had contacted
me regarding filing a complaint that his time frames were protected
in case he decided to pursue EEO counseling, but that he should think
his actions over and perhaps talk to the Director. . . . [At some later
unspecified time] I asked him if he was ok and he stated to me that he
was and that he was not [pursuing] his complaint and that he did not
want to enter informal counseling. I did not give [appellant] any forms
relative to entering into counseling as he said he would wait to see what,
if anything happened. I did assure him that if he wanted to enter into
counseling in the subsequent weeks, that his time was protected in doing
so because he had contacted a management official about his EEO issues.
I do not know why [appellant] would have thought that he had filed a
formal complaint because we did discuss him entering into counseling
if he elected to do so. He must have misunderstood that part of the
process since his letter to me did say Formal EEO Complaint. I did,
however, discuss the informal process of securing a counselor, which he
said he would do if no other action were taken to deal with his issues.
On appeal appellant argues:
I was never informed at any time that my complaint would not be considered
formal if I did not meet with a counselor. . . . Thus, I filed my
complaint on December 28, 1994 . . . If I was told that my complaint
would not be considered formal until I met with a counselor, I would
have met with a counselor to have this situation as a matter of record.
. . . .
I could only enter into counseling after I filed the complaint which I
did file on December 28, 1994. Thus, I was under the impression that
I had filed a formal complaint.
. . . .
Since I had contacted an EEO Official. I was under the impression that
my complaint was formal.
The Commission finds that appellant believed he had commenced the
EEO process by filing a complaint with the Chief, Diversity Office
on December 27, 1994. The agency does not claim that the Chief gave
appellant written rights during his meeting with the Chief which
would have explained the EEO process. The agency does not claim that
appellant ever signed any document indicating that he was withdrawing
the EEO matter. The agency does not claim that the agency ever sent
appellant a letter informing him that the matter was closed. Although the
Chief asserts that appellant stated that he did not wish to pursue EEO
counseling, the Chief was in possession, in December 1994, of specific
allegations of discrimination made by appellant in a document entitled
"EEO Complaint." The Chief admits that she never handed appellant the
"forms relative to entering into counseling." Appellant argues that
he would have met with an EEO Counselor if he knew of the necessity of
making such contact. The different recollections by appellant and the
Chief as to whether appellant was advised of the necessity of counseling
can not be reconciled. Given that appellant submitted the "EEO complaint"
we find that under the circumstances the record sufficiently shows that
appellant evinced the necessary intent to commence the EEO process on
December 27, 1994.
The next question is whether appellant is barred by the doctrine of laches
for not pursuing these claims until October 1997. Once appellant seeks
EEO counseling the agency is required to provide EEO counseling pursuant
to §1614.105. The agency never provided counseling in this instance
(prior to October 1997) and there is no indication that appellant was
ever informed of his rights or of what time frames he could expect any
action by the agency. There is nothing in the record to indicate that
appellant pursued the matter after his initial contact in December 27,
1994 and subsequent meetings at unspecified times (described as "shortly
thereafter" by the Chief) until he filed October 1997 document. Although
the Commission is troubled by appellant's failure to pursue the matter
until October 1997, the Commission finds that because of appellant's not
unreasonable presumption that he had filed a complaint and because of the
agency's failure to provide written information to appellant about the
complaint process and the time frames for agency actions in the process,
appellant is not barred by the doctrine of laches from raising these
matters in his October 1997 contact of an EEO Counselor. Therefore, we
find that the agency improperly dismissed the portion of the December 5,
1997 complaint which raised the allegations contained in the December 27,
1994 document.
The Commission notes that the Commission is not deciding in this decision
whether appellant was timely in his initial EEO contact on December
27, 1994 regarding the allegations contained in the December 27, 1994
document. The agency did not define the allegations in the December 27,
1994 document and did not dismiss the allegations raised in the December
27, 1994 document for untimely EEO Counselor contact.
Allegations Specifically Listed in the October 1997 Document
The Commission finds that the agency's decision dismissing allegations 1 -
11 for untimely EEO Counselor contact is proper pursuant to §1614.107(b).
These allegations concern: (1) attempt to expedite resignation; (2)
denial of suggestion; (3) no resolution to appraisal rebuttal; (4)
subject to investigation; (5) vicious rumors and racial innuendos;
(6) resubmission of suggestion returned; (7) memorandum regarding
communication skills; (8) performance appraisal; (9) delay in receipt
of award; (10) more rumors and innuendos; and (11) management official
met with appellant's subordinates in order to discuss their concerns
about appellant's management skills. Appellant has not challenged the
agency's framing of the complaint. These allegations are not timely
under the continuing violation theory, because the Commission finds
that appellant should have reasonably suspected discrimination regarding
the eleven allegations at issue at the time of the incidents which all
occurred more than 45 days before appellant contacted an EEO Counselor.
Furthermore, appellant has not provided a sufficient reason to equitably
toll the time limits for contacting an EEO Counselor.
The agency's decision dismissing allegations 1 - 11 is AFFIRMED.
The agency's decision dismissing the allegations raised in the December
27, 1994 document is REVERSED and we REMAND these allegations to the
agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (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:
May 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [] | [
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429 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01990752_r.txt | 01990752_r.txt | TXT | text/plain | 16,780 | October 30, 1998 | Appeal Number: 01990752
Complaint Allegations:
In his complaint, appellant alleged that he was subjected to discrimination on the bases of sex (male) and age (51) when: In October 1997, appellant was not selected for the position of Manager, Boston ARTCC, Washua, NH, under vacancy announcement NSP-97-NE-063; and In April 1998, appellant was not selected for the position of Manchester, NH Hub Manager, under vacancy announcement NSP-98-NE-026.
Case Facts:
On October 30, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on October 13, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of sex (male) and age (51) when:
In October 1997, appellant was not selected for the position of Manager,
Boston ARTCC, Washua, NH, under vacancy announcement NSP-97-NE-063; and
In April 1998, appellant was not selected for the position of Manchester,
NH Hub Manager, under vacancy announcement NSP-98-NE-026.
The agency accepted allegation (2), but dismissed allegation (1) pursuant
to
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.107(b), for untimely counselor contact.
On appeal, appellant argues that he contacted the Office of Regional
Counsel the same day that he learned of his non-selection for
vacancy announcement NSP-97-NE-063. Appellant contends that he spoke
with an officer with the FAA Office of Civil Rights later that day.
Appellant admits that he did not contact an EEO Counselor until after
the nonselection raised in allegation (2), but argues that neither
the Regional Counsel nor the Office of Civil Rights referred him to
an EEO Counselor. Appellant alleges a continuing violation. Appellant
notes that the FAA Office of Civil Rights is not directly connected to
the agency Office of Civil Rights, and that the FAA Office only handles
affirmative action implementation and compliance, while the agency Office
employs counselors and investigators for EEO complaints.
In response, the agency admits that appellant spoke with a deputy FAA
Regional Counsel and with a member of the FAA Office of Civil Rights
staff, but notes that appellant did not contact an EEO Counselor until
almost a year later. The agency argues that as a former high level
management employee, appellant should be aware of the requirement to
contact an EEO Counselor, and that appellant's duties included directing
subordinates who believed they were aggrieved to the correct EEO official
for counseling. Given appellant's experience, the agency argues,
appellant's contact with the Regional Counsel and FAA Office of Civil
Rights should not suffice for initial counselor contact. The agency
also contends that appellant's management experience at least gives
him constructive knowledge of the time limits. Regarding appellant's
allegation of a continuing violation, the agency argues that appellant's
nonselection was an event that should have triggered an awareness of
the duty to seek counseling.
The agency appended an affidavit from an EEO officer to its brief,
which stated that EEO information, including the names and phone numbers
of all EEO counselors, are prominently displayed at each FAA facility.
According to the affidavit, the information also is included in the FAA
telephone directory. Appellant denied ever seeing an EEO posting at an
FAA job site, and explained that after receiving a copy of the affidavit,
he searched for, but did not find, the EEO posters in five (5) different
agency facilities. Appellant also questions why he was never referred
to a counselor by the Regional Counsel or FAA Civil Rights Officer.
A review of the record reveals that, in his undated formal complaint,
appellant believed based upon advice received, that this contact [with
Regional Counsel and FAA Office of Civil Rights] would suffice to ensure
my rights were safeguarded. However, appellant never elaborated on
what advice he received. The Counselor's Report, dated June 26, 1998,
lists appellant's date of initial counselor contact as May 11, 1998.
The report also explains that appellant stop[ped] by the Office of
Civil Rights to discuss his concerns with a Civil Rights Officer, but
did not contact a counselor nor file an EEO complaint at that time.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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.
A complainant commences the EEO process by contacting an EEO Counselor
and exhibiting an intent to begin the complaint process. See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is logically connected with the EEO process is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(Sept. 7, 1990); see Kemer v. General Services Administration, EEOC
Request No. 05910779 (Dec. 30, 1991).
The Commission finds that appellant held prior management positions,
from which some knowledge of the EEO process can be imputed. See
Lagana v. Department of Navy, EEOC Appeal No. 01962557 (Jan. 8, 1997)
(knowledge of time limits is imputed to a labor relations specialist
who must advise management of EEO complaints); cf. Kemer v. General
Services Administration, EEOC Request No. 01910779 (Dec. 30, 1991)
(letter to member of upper management that in effect requested counseling,
is timely EEO contact); Morgan v. Department of Agriculture, EEOC Appeal
No. 01971556 (Feb. 13, 1998) (manager is person logically connected with
EEO process for purposes of timeliness management has responsibility
to direct aggrieved subordinates to EEO counselor). Nonetheless,
appellant's discussion with the Regional Counsel was contact with an
official logically connected with the EEO process. Although appellant
met with officials logically connected to the EEO process, he failed to
establish an intent to begin the EEO process at that time. See Ellard
v. Department of Veteran's Affairs, EEOC Appeal No. 01964182 (Jan. 16,
1997), rev. denied EEOC Request No. 05970483 (May 22, 1997) (letter to
upper management, while to person logically connected to EEO process,
did not exhibit intent to begin complaint); Allen v. United States Parcel
Service, EEOC Request No. 05950933 (July 8, 1996) (A letter written to a
person logically connected with the EEO process that broadly complains of
discrimination, but fails to exhibit an intent to begin the EEO complaint
process, does not constitute initial counselor contact for purposes of
timeliness). Therefore, the Commission finds that appellant initially
contacted a counselor on May 11, 1998.
In its final decision, the agency failed to consider the question
of a continuing violation. The Commission has held that where the
agency failed to consider this issue, the case must be remanded for
consideration of the issue of a continuing violation and issuance of a new
FAD making a specific determination under the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
However, on appeal, the agency argues that appellant's complaint does
not constitute a continuing violation in its final decision. Though the
agency did not address the issue of continuing violation in its FAD,
we find that it would be futile to remand appellant's complaint for
consideration of this issue, as it has been addressed by the agency on
appeal. Therefore, we will determine whether the dismissed allegations
constitute a continuing violation.
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 Reid v. Department of Commerce, EEOC
Request No. 05970705 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a common
nexus or theme. See Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (Oct. 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who
believed he had been subjected to discrimination had an obligation to
file promptly with the EEOC or lose his claim, as distinguished from the
situation where a plaintiff is unable to appreciate that he is being
discriminated against until he has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
The Commission finds that appellant's nonselection is an event with a
degree of permanence which should have triggered appellant's obligation
to file a complaint. See Jackson v. Department of the Air Force, EEOC
Request No. 05950780 (June 27, 1997); Anvari v. Department of Health and
Human Services, EEOC Request No. 05930157 (June 17, 1993). Further,
appellant admits his suspicion of discrimination in October 1997.
Therefore, allegation (1) is not part of a continuing violation, and
does not excuse appellant's untimely counselor contact.
Final Decision:
Accordingly, the agency's decision is AFFIRMED. | Raymond W. German, )
Appellant, )
)
v. ) Appeal No. 01990752
) Agency No. 1-98-1092
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On October 30, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on October 13, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of sex (male) and age (51) when:
In October 1997, appellant was not selected for the position of Manager,
Boston ARTCC, Washua, NH, under vacancy announcement NSP-97-NE-063; and
In April 1998, appellant was not selected for the position of Manchester,
NH Hub Manager, under vacancy announcement NSP-98-NE-026.
The agency accepted allegation (2), but dismissed allegation (1) pursuant
to EEOC Regulation 29 C.F.R. §1614.107(b), for untimely counselor contact.
On appeal, appellant argues that he contacted the Office of Regional
Counsel the same day that he learned of his non-selection for
vacancy announcement NSP-97-NE-063. Appellant contends that he spoke
with an officer with the FAA Office of Civil Rights later that day.
Appellant admits that he did not contact an EEO Counselor until after
the nonselection raised in allegation (2), but argues that neither
the Regional Counsel nor the Office of Civil Rights referred him to
an EEO Counselor. Appellant alleges a continuing violation. Appellant
notes that the FAA Office of Civil Rights is not directly connected to
the agency Office of Civil Rights, and that the FAA Office only handles
affirmative action implementation and compliance, while the agency Office
employs counselors and investigators for EEO complaints.
In response, the agency admits that appellant spoke with a deputy FAA
Regional Counsel and with a member of the FAA Office of Civil Rights
staff, but notes that appellant did not contact an EEO Counselor until
almost a year later. The agency argues that as a former high level
management employee, appellant should be aware of the requirement to
contact an EEO Counselor, and that appellant's duties included directing
subordinates who believed they were aggrieved to the correct EEO official
for counseling. Given appellant's experience, the agency argues,
appellant's contact with the Regional Counsel and FAA Office of Civil
Rights should not suffice for initial counselor contact. The agency
also contends that appellant's management experience at least gives
him constructive knowledge of the time limits. Regarding appellant's
allegation of a continuing violation, the agency argues that appellant's
nonselection was an event that should have triggered an awareness of
the duty to seek counseling.
The agency appended an affidavit from an EEO officer to its brief,
which stated that EEO information, including the names and phone numbers
of all EEO counselors, are prominently displayed at each FAA facility.
According to the affidavit, the information also is included in the FAA
telephone directory. Appellant denied ever seeing an EEO posting at an
FAA job site, and explained that after receiving a copy of the affidavit,
he searched for, but did not find, the EEO posters in five (5) different
agency facilities. Appellant also questions why he was never referred
to a counselor by the Regional Counsel or FAA Civil Rights Officer.
A review of the record reveals that, in his undated formal complaint,
appellant believed based upon advice received, that this contact [with
Regional Counsel and FAA Office of Civil Rights] would suffice to ensure
my rights were safeguarded. However, appellant never elaborated on
what advice he received. The Counselor's Report, dated June 26, 1998,
lists appellant's date of initial counselor contact as May 11, 1998.
The report also explains that appellant stop[ped] by the Office of
Civil Rights to discuss his concerns with a Civil Rights Officer, but
did not contact a counselor nor file an EEO complaint at that time.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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.
A complainant commences the EEO process by contacting an EEO Counselor
and exhibiting an intent to begin the complaint process. See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is logically connected with the EEO process is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(Sept. 7, 1990); see Kemer v. General Services Administration, EEOC
Request No. 05910779 (Dec. 30, 1991).
The Commission finds that appellant held prior management positions,
from which some knowledge of the EEO process can be imputed. See
Lagana v. Department of Navy, EEOC Appeal No. 01962557 (Jan. 8, 1997)
(knowledge of time limits is imputed to a labor relations specialist
who must advise management of EEO complaints); cf. Kemer v. General
Services Administration, EEOC Request No. 01910779 (Dec. 30, 1991)
(letter to member of upper management that in effect requested counseling,
is timely EEO contact); Morgan v. Department of Agriculture, EEOC Appeal
No. 01971556 (Feb. 13, 1998) (manager is person logically connected with
EEO process for purposes of timeliness management has responsibility
to direct aggrieved subordinates to EEO counselor). Nonetheless,
appellant's discussion with the Regional Counsel was contact with an
official logically connected with the EEO process. Although appellant
met with officials logically connected to the EEO process, he failed to
establish an intent to begin the EEO process at that time. See Ellard
v. Department of Veteran's Affairs, EEOC Appeal No. 01964182 (Jan. 16,
1997), rev. denied EEOC Request No. 05970483 (May 22, 1997) (letter to
upper management, while to person logically connected to EEO process,
did not exhibit intent to begin complaint); Allen v. United States Parcel
Service, EEOC Request No. 05950933 (July 8, 1996) (A letter written to a
person logically connected with the EEO process that broadly complains of
discrimination, but fails to exhibit an intent to begin the EEO complaint
process, does not constitute initial counselor contact for purposes of
timeliness). Therefore, the Commission finds that appellant initially
contacted a counselor on May 11, 1998.
In its final decision, the agency failed to consider the question
of a continuing violation. The Commission has held that where the
agency failed to consider this issue, the case must be remanded for
consideration of the issue of a continuing violation and issuance of a new
FAD making a specific determination under the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
However, on appeal, the agency argues that appellant's complaint does
not constitute a continuing violation in its final decision. Though the
agency did not address the issue of continuing violation in its FAD,
we find that it would be futile to remand appellant's complaint for
consideration of this issue, as it has been addressed by the agency on
appeal. Therefore, we will determine whether the dismissed allegations
constitute a continuing violation.
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 Reid v. Department of Commerce, EEOC
Request No. 05970705 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a common
nexus or theme. See Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (Oct. 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who
believed he had been subjected to discrimination had an obligation to
file promptly with the EEOC or lose his claim, as distinguished from the
situation where a plaintiff is unable to appreciate that he is being
discriminated against until he has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
The Commission finds that appellant's nonselection is an event with a
degree of permanence which should have triggered appellant's obligation
to file a complaint. See Jackson v. Department of the Air Force, EEOC
Request No. 05950780 (June 27, 1997); Anvari v. Department of Health and
Human Services, EEOC Request No. 05930157 (June 17, 1993). Further,
appellant admits his suspicion of discrimination in October 1997.
Therefore, allegation (1) is not part of a continuing violation, and
does not excuse appellant's untimely counselor contact.
CONCLUSION
Accordingly, the agency's decision 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. 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 31, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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"Moore v. Department of Treasury, EEOC Request No. 05900194 (May 24, 1990)",
"Jones v. Department of the Army, EEOC Request No. 05900435 (Sept. 7, 19... | [
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430 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01990752.txt | 01990752.txt | TXT | text/plain | 17,052 | August 31, 1999 | Appeal Number: 01990752
Complaint Allegations:
In his complaint, appellant alleged that he was subjected to discrimination on the bases of sex (male) and age (51) when: In October 1997, appellant was not selected for the position of Manager, Boston ARTCC, Washua, NH, under vacancy announcement NSP-97-NE-063; and In April 1998, appellant was not selected for the position of Manchester, NH Hub Manager, under vacancy announcement NSP-98-NE-026.
Case Facts:
On October 30, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on October 13, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of sex (male) and age (51) when:
In October 1997, appellant was not selected for the position of Manager,
Boston ARTCC, Washua, NH, under vacancy announcement NSP-97-NE-063; and
In April 1998, appellant was not selected for the position of Manchester,
NH Hub Manager, under vacancy announcement NSP-98-NE-026.
The agency accepted allegation (2), but dismissed allegation (1) pursuant
to
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.107(b), for untimely counselor
contact.
On appeal, appellant argues that he contacted the Office of Regional
Counsel the same day that he learned of his non-selection for
vacancy announcement NSP-97-NE-063. Appellant contends that he spoke
with an officer with the FAA Office of Civil Rights later that day.
Appellant admits that he did not contact an EEO Counselor until after
the nonselection raised in allegation (2), but argues that neither
the Regional Counsel nor the Office of Civil Rights referred him to
an EEO Counselor. Appellant alleges a continuing violation. Appellant
notes that the FAA Office of Civil Rights is not directly connected to
the agency Office of Civil Rights, and that the FAA Office only handles
affirmative action implementation and compliance, while the agency Office
employs counselors and investigators for EEO complaints.
In response, the agency admits that appellant spoke with a deputy FAA
Regional Counsel and with a member of the FAA Office of Civil Rights
staff, but notes that appellant did not contact an EEO Counselor until
almost a year later. The agency argues that as a former high level
management employee, appellant should be aware of the requirement to
contact an EEO Counselor, and that appellant's duties included directing
subordinates who believed they were aggrieved to the correct EEO official
for counseling. Given appellant's experience, the agency argues,
appellant's contact with the Regional Counsel and FAA Office of Civil
Rights should not suffice for initial counselor contact. The agency
also contends that appellant's management experience at least gives
him constructive knowledge of the time limits. Regarding appellant's
allegation of a continuing violation, the agency argues that appellant's
nonselection was an event that should have triggered an awareness of
the duty to seek counseling.
The agency appended an affidavit from an EEO officer to its brief,
which stated that EEO information, including the names and phone numbers
of all EEO counselors, are prominently displayed at each FAA facility.
According to the affidavit, the information also is included in the FAA
telephone directory. Appellant denied ever seeing an EEO posting at an
FAA job site, and explained that after receiving a copy of the affidavit,
he searched for, but did not find, the EEO posters in five (5) different
agency facilities. Appellant also questions why he was never referred
to a counselor by the Regional Counsel or FAA Civil Rights Officer.
A review of the record reveals that, in his undated formal complaint,
appellant believed "based upon advice received, that this contact [with
Regional Counsel and FAA Office of Civil Rights] would suffice to ensure
my rights were safeguarded." However, appellant never elaborated on
what advice he received. The Counselor's Report, dated June 26, 1998,
lists appellant's date of initial counselor contact as May 11, 1998.
The report also explains that appellant "stop[ped] by" the Office of
Civil Rights to discuss his concerns with a Civil Rights Officer, but
did not contact a counselor nor file an EEO complaint at that time.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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.
A complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is "logically connected with the EEO process" is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(Sept. 7, 1990); see Kemer v. General Services Administration, EEOC
Request No. 05910779 (Dec. 30, 1991).
The Commission finds that appellant held prior management positions,
from which some knowledge of the EEO process can be imputed. See
Lagana v. Department of Navy, EEOC Appeal No. 01962557 (Jan. 8, 1997)
(knowledge of time limits is imputed to a labor relations specialist
who must advise management of EEO complaints); cf. Kemer v. General
Services Administration, EEOC Request No. 01910779 (Dec. 30, 1991)
(letter to member of upper management that in effect requested counseling,
is timely EEO contact); Morgan v. Department of Agriculture, EEOC Appeal
No. 01971556 (Feb. 13, 1998) (manager is person logically connected with
EEO process for purposes of timeliness management has responsibility
to direct aggrieved subordinates to EEO counselor). Nonetheless,
appellant's discussion with the Regional Counsel was contact with an
official logically connected with the EEO process. Although appellant
met with officials logically connected to the EEO process, he failed to
establish an intent to begin the EEO process at that time. See Ellard
v. Department of Veteran's Affairs, EEOC Appeal No. 01964182 (Jan. 16,
1997), rev. denied EEOC Request No. 05970483 (May 22, 1997) (letter to
upper management, while to person logically connected to EEO process,
did not exhibit intent to begin complaint); Allen v. United States Parcel
Service, EEOC Request No. 05950933 (July 8, 1996) (A letter written to a
person logically connected with the EEO process that broadly complains of
discrimination, but fails to exhibit an intent to begin the EEO complaint
process, does not constitute initial counselor contact for purposes of
timeliness). Therefore, the Commission finds that appellant initially
contacted a counselor on May 11, 1998.
In its final decision, the agency failed to consider the question
of a continuing violation. The Commission has held that where the
agency failed to consider this issue, the case must be remanded for
consideration of the issue of a continuing violation and issuance of a new
FAD making a specific determination under the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
However, on appeal, the agency argues that appellant's complaint does
not constitute a continuing violation in its final decision. Though the
agency did not address the issue of continuing violation in its FAD,
we find that it would be futile to remand appellant's complaint for
consideration of this issue, as it has been addressed by the agency on
appeal. Therefore, we will determine whether the dismissed allegations
constitute a continuing violation.
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 Reid v. Department of Commerce, EEOC
Request No. 05970705 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a common
nexus or theme. See Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (Oct. 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who
believed he had been subjected to discrimination had an obligation to
file promptly with the EEOC or lose his claim, as distinguished from the
situation where a plaintiff is unable to appreciate that he is being
discriminated against until he has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
The Commission finds that appellant's nonselection is an event with a
degree of permanence which should have triggered appellant's obligation
to file a complaint. See Jackson v. Department of the Air Force, EEOC
Request No. 05950780 (June 27, 1997); Anvari v. Department of Health and
Human Services, EEOC Request No. 05930157 (June 17, 1993). Further,
appellant admits his suspicion of discrimination in October 1997.
Therefore, allegation (1) is not part of a continuing violation, and
does not excuse appellant's untimely counselor contact.
Final Decision:
Accordingly, the agency's decision is AFFIRMED. | Raymond W. German v. Department of Transportation
01990752
August 31, 1999
Raymond W. German, )
Appellant, )
)
v. ) Appeal No. 01990752
) Agency No. 1-98-1092
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On October 30, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on October 13, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of sex (male) and age (51) when:
In October 1997, appellant was not selected for the position of Manager,
Boston ARTCC, Washua, NH, under vacancy announcement NSP-97-NE-063; and
In April 1998, appellant was not selected for the position of Manchester,
NH Hub Manager, under vacancy announcement NSP-98-NE-026.
The agency accepted allegation (2), but dismissed allegation (1) pursuant
to EEOC Regulation 29 C.F.R. §1614.107(b), for untimely counselor
contact.
On appeal, appellant argues that he contacted the Office of Regional
Counsel the same day that he learned of his non-selection for
vacancy announcement NSP-97-NE-063. Appellant contends that he spoke
with an officer with the FAA Office of Civil Rights later that day.
Appellant admits that he did not contact an EEO Counselor until after
the nonselection raised in allegation (2), but argues that neither
the Regional Counsel nor the Office of Civil Rights referred him to
an EEO Counselor. Appellant alleges a continuing violation. Appellant
notes that the FAA Office of Civil Rights is not directly connected to
the agency Office of Civil Rights, and that the FAA Office only handles
affirmative action implementation and compliance, while the agency Office
employs counselors and investigators for EEO complaints.
In response, the agency admits that appellant spoke with a deputy FAA
Regional Counsel and with a member of the FAA Office of Civil Rights
staff, but notes that appellant did not contact an EEO Counselor until
almost a year later. The agency argues that as a former high level
management employee, appellant should be aware of the requirement to
contact an EEO Counselor, and that appellant's duties included directing
subordinates who believed they were aggrieved to the correct EEO official
for counseling. Given appellant's experience, the agency argues,
appellant's contact with the Regional Counsel and FAA Office of Civil
Rights should not suffice for initial counselor contact. The agency
also contends that appellant's management experience at least gives
him constructive knowledge of the time limits. Regarding appellant's
allegation of a continuing violation, the agency argues that appellant's
nonselection was an event that should have triggered an awareness of
the duty to seek counseling.
The agency appended an affidavit from an EEO officer to its brief,
which stated that EEO information, including the names and phone numbers
of all EEO counselors, are prominently displayed at each FAA facility.
According to the affidavit, the information also is included in the FAA
telephone directory. Appellant denied ever seeing an EEO posting at an
FAA job site, and explained that after receiving a copy of the affidavit,
he searched for, but did not find, the EEO posters in five (5) different
agency facilities. Appellant also questions why he was never referred
to a counselor by the Regional Counsel or FAA Civil Rights Officer.
A review of the record reveals that, in his undated formal complaint,
appellant believed "based upon advice received, that this contact [with
Regional Counsel and FAA Office of Civil Rights] would suffice to ensure
my rights were safeguarded." However, appellant never elaborated on
what advice he received. The Counselor's Report, dated June 26, 1998,
lists appellant's date of initial counselor contact as May 11, 1998.
The report also explains that appellant "stop[ped] by" the Office of
Civil Rights to discuss his concerns with a Civil Rights Officer, but
did not contact a counselor nor file an EEO complaint at that time.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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.
A complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is "logically connected with the EEO process" is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(Sept. 7, 1990); see Kemer v. General Services Administration, EEOC
Request No. 05910779 (Dec. 30, 1991).
The Commission finds that appellant held prior management positions,
from which some knowledge of the EEO process can be imputed. See
Lagana v. Department of Navy, EEOC Appeal No. 01962557 (Jan. 8, 1997)
(knowledge of time limits is imputed to a labor relations specialist
who must advise management of EEO complaints); cf. Kemer v. General
Services Administration, EEOC Request No. 01910779 (Dec. 30, 1991)
(letter to member of upper management that in effect requested counseling,
is timely EEO contact); Morgan v. Department of Agriculture, EEOC Appeal
No. 01971556 (Feb. 13, 1998) (manager is person logically connected with
EEO process for purposes of timeliness management has responsibility
to direct aggrieved subordinates to EEO counselor). Nonetheless,
appellant's discussion with the Regional Counsel was contact with an
official logically connected with the EEO process. Although appellant
met with officials logically connected to the EEO process, he failed to
establish an intent to begin the EEO process at that time. See Ellard
v. Department of Veteran's Affairs, EEOC Appeal No. 01964182 (Jan. 16,
1997), rev. denied EEOC Request No. 05970483 (May 22, 1997) (letter to
upper management, while to person logically connected to EEO process,
did not exhibit intent to begin complaint); Allen v. United States Parcel
Service, EEOC Request No. 05950933 (July 8, 1996) (A letter written to a
person logically connected with the EEO process that broadly complains of
discrimination, but fails to exhibit an intent to begin the EEO complaint
process, does not constitute initial counselor contact for purposes of
timeliness). Therefore, the Commission finds that appellant initially
contacted a counselor on May 11, 1998.
In its final decision, the agency failed to consider the question
of a continuing violation. The Commission has held that where the
agency failed to consider this issue, the case must be remanded for
consideration of the issue of a continuing violation and issuance of a new
FAD making a specific determination under the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
However, on appeal, the agency argues that appellant's complaint does
not constitute a continuing violation in its final decision. Though the
agency did not address the issue of continuing violation in its FAD,
we find that it would be futile to remand appellant's complaint for
consideration of this issue, as it has been addressed by the agency on
appeal. Therefore, we will determine whether the dismissed allegations
constitute a continuing violation.
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 Reid v. Department of Commerce, EEOC
Request No. 05970705 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a common
nexus or theme. See Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (Oct. 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who
believed he had been subjected to discrimination had an obligation to
file promptly with the EEOC or lose his claim, as distinguished from the
situation where a plaintiff is unable to appreciate that he is being
discriminated against until he has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
The Commission finds that appellant's nonselection is an event with a
degree of permanence which should have triggered appellant's obligation
to file a complaint. See Jackson v. Department of the Air Force, EEOC
Request No. 05950780 (June 27, 1997); Anvari v. Department of Health and
Human Services, EEOC Request No. 05930157 (June 17, 1993). Further,
appellant admits his suspicion of discrimination in October 1997.
Therefore, allegation (1) is not part of a continuing violation, and
does not excuse appellant's untimely counselor contact.
CONCLUSION
Accordingly, the agency's decision 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. 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 31, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [
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"Jones v. Department of the Army, EEOC Request No. 05900435 (Sept. 7, 19... | [
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431 | https://www.eeoc.gov/sites/default/files/decisions/2022_07_20/2022000771.pdf | 2022000771.pdf | PDF | application/pdf | 31,819 | Shayna P.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. | November 23, 2021 | Appeal Number: 2022000771
Background:
During the relevant time , Complainant worked as a n Equal Employment Opportunity Specialist
at the Agency’s Fort Knox Installation in Fort Knox, Kentucky. Complainant is diagnosed with sarcoidosis/Chronic Obstructive Pulmonary Disease (COPD). Complainant Brief, Exhibit 2; Record of Investigation ( ROI) at 185.
Complainant was originally hired as an Army Civilian Training, Education and Development System (ACTEDS) intern in 2017. ROI at 184, 189.
Director EEO/OCR explained that this is a two -year program. After successful completion of the
internship program, the Command looks for positions to place the ACTEDS interns . The interns
are placed based upon the needs of the Command. ROI at 219.
Compla inant asserted that, from her inception into the program, her goal was to return to
Washington, D.C., because of her medical condition and that she wanted to work in human
resources or EEO. ROI at 189. Complainant acknowledged that she was told that the Agency may not be able to place her in D.C., but that they would try to get her as close to D.C. as
possible. ROI at 189, 194. Complainant recounted that in February or March 2019, EEO Director (female, over 40, with a
disability) contacted her and asked if Fort Detrick would be an acceptable placement, and
Complainant said that was “great.” ROI at 189. On June 15, 2019, Complainant visited Fort
Detrick. ROI at 189. Program Manager recounted that she did not think that it would be a good idea for Complainant to visit Fort Detrick because, in her interactions with Complainant,
Complainant could become argumentative. ROI at 247. Complainant told human resources that EEO Officer approved a house hunting trip for Complainant which, in actuality, EEO Officer had not approved. ROI at 242. During her visit, Complainant purportedly told EEO Officer that EEO Officer ’s division was broken and Complainant told EEO Officer how she planned to fix it .
Despite this, upon being told by Complainant that she was 100 percent dis abled, with breathing
and allergy difficulties, EEO officer ordered Complainant an air purifier in anticipation of her arrival at Fort Detrick. ROI at 210.
EEO Officer stated that , after Complainant’s visit, she concluded that Complainant’s behavior
caused conflict among the staff at Fort Detrick . ROI at 212. Specifically, EEO Officer said that
she received a report from an employee that Complainant called EEO Officer the “Tasmanian
devil” during her visit. ROI at 212. EEO Officer said that s he was receiving comments from the
staff at Fort Detrick such as, “ if [Complainant is ] coming to EEO it’s going to be an issue.” ROI
at 212. EEO Officer believed Complainant’s behavior would cause more conflict if she worked at Fort Detrick, because Compla inant had managed to create conflict before she’d even arrived to
begin her position. ROI at 212. EEO Officer reported that she told Program Manager she did not
think Complainant would be a good fit for the office. Director EEO/OCR made the final decision
and said that he would let Complainant know. ROI at 212.
In July 2019, Complainant was notified that she was not assigned to Fort Detrick but , instead,
was assigned to Pr esidio at Monterey in California (POM). ROI at 190. Complainant stated that
she objected to the assignment due to her medical condition, the high cost of rent, and her
terminally ill mother who had stage IV kidney disease. ROI at 190. Director EEO/OCR asserted
that, in the conversation notifying Complainant of the change in assignment , Complainant
threatened to quit the ACTEDS program. Director EEO/OCR said that he encouraged
Complainant to reconsider that decision, because if she quit, she would have to repay the money to the government that had been invested in her training. Director EEO/OCR stated that he
encouraged her to take the position at POM and he would look for opportunities for her on the East Coast. ROI at 221.
On July 11, 2019, Complainant accepted the position at POM. ROI at 272. Complainant alleged
that Program Manager told her that she would be removed from the program if she did not accept
the position in POM. ROI at 195- 96.
Complainant opined that three coworkers (CW) were treated more favorably than she. Complainant alleged that CW1 (female, early twenties, with a d isability ), was treated more
favorably than Complainant, because she was supposedly offered several choices, but she denied
assignments and was assigned to Leavenworth, Kansas. ROI at 190. CW2 ( female,
approximately 50s, with a disability ), was noted by Complainant to have been assigned to her
hometown. ROI at 190. CW3 ( male, early 50s, with a disability ), was presumed by Complainant
to have been treated more favorably than she because Complainant believed that CW3 had been
given two assignments and, when h e refused, Complainant said that the Agency found him an
assignment at Fort Benning. ROI at 190. The evidence of record contradicts C omplainant’s
assumptions about all her named comparators . Neither CW1, CW2, nor CW3 was placed at their
first- choice location . ROI at 222, 261 .
Complainant alleged that the Agency did not engage in the interactive process required by the Rehabilitation Act. ROI at 192. Complainant asserted that she contacted her supervisors and
chain of command and request ed that she receive a reasonable accommodation (RA) to not be
assigned to California. ROI at 192. Complainant provided the EEO investigator a n undated and
unfinished email, without time, date, or address stamp , which stated, “The thing is, I have COPD
a chronic illness. It’s [sic] Very Respectfully, [Complainant] ” ROI at 204. There is no evidence
that it was sent to or received by anyone at the Agency. On July 11, 2019, EEO Director emailed
Director EEO/OCR relaying that Complainant stated that her medical condition would not allow
her to except the POM assignment, but that Complainant refused to resign from the Intern
Program. ROI at 224.
Agency policy outlined that the decision- maker for a requested RA is someone in the employee’s
chain of command, usually the employee’s immediate supervisor. ROI at 230. Director EEO/OCR and Program Manager denied that Complainant requested an RA, or provided any
relevant medical documentation , prior to her accepting the position at POM . ROI 169, 179, 248 .
Rather, Program Manager stated that Complainant asserted that she was unable to move to POM
because her mom was sick , and she was her mother’s sole caregiver. ROI at 169. Program
Manager reached out to the EEO officer at POM to let the EEO officer know that Compla inant’s
mother was sick , and that Complainant would likely be taking time off. ROI at 169, 245.
Program Manager said that she later discovered that Complainant’s mother was not located on the East coast, where Complainant was requesting placement, but was in the Midwest. ROI at
169. In a July 18, 2019, email, Program Manager relayed information from Deputy and Command
Disability Program Manager, that Complainant was to gather all of her documentation from her doctor, and her requested documentation, and submit the packet once she arrived at POM. ROI at
205. Complainant a cknowledge d that she submitted her RA and equipment requests when she
arrived at POM and her POM supervisor approved the requests. ROI at 197.
On Septemb er 5, 2019, Complainant filed an EEO complaint alleging that the Agency :
1. Discriminated against her on the bases of disability (physical) when on July 3, 2019, she
was informed her agreed upon assignment to Fort Detrick, Maryland was canceled and
she would be reassigned to Monterey, California. She was told if she did not take reassignment that she would be removed from her federal position ; she had to respond no
later than July 11, 2019, or her removal would be implemented;
2 and
2. Discriminated against her based upon disability (physical) when on July 18, 2019,
Program Manager , Program Manager, IMCOM, San Antonio, told her she could not
subm it her RA request until she received her new assignment. Thus, the Agency did not
accept her RA request or medical documents prior to her reassignment to California.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant initia lly requested a hearing
before an AJ, and an AJ was assigned to the complaint. The case was assigned Hearing Number
570-2020- 01111X . Complainant subsequently withdrew her hearing request and on July 26,
2021, the assigned AJ dismissed the Hearing Request a nd directed the issuance of a FAD.
In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant’s representative asserts that the Commission should issue a default judgment against the Agency, as the Agency issued its FAD on November 26, 2021, as opposed to
September 24, 2021. In the a lternative, the representative argues that the Agency should pay
attorney’s fees and costs.
2 Complainant originally claimed that claim 1 was discrimination due to sex (female) and age
(60) discrimination, in addition to discrimination based upon disability. Complainant’s brief, however, clearly specifies she is not challenging the FAD as to their findings of sex and age. To that end, we note that the Commission has the discretion to re view only those issues specifically
raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). As Complainant did not contest
the Agency’s decision concerning sex or age discrimination, we need not address these claims in
the instant decision.
With regard to the substance of the appeal, Complainant contends that the Agency failed to
accommodate her medical conditions and that the Agency’s officials were untruthful in their affidavits that they were unaware of Complainant’s request for an accommodation. Complainant’s counsel asserts that the “unfair and improper conduct by management officials” justifies default judgment.
The Agency counters that Complain ant did not request an RA prior to moving to California and
that Complainant has not met her burden to show that the Agency failed to act on Complainant’s request.
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
During the relevant time , Complainant worked as a n Equal Employment Opportunity Specialist
at the Agency’s Fort Knox Installation in Fort Knox, Kentucky. Complainant is diagnosed with sarcoidosis/Chronic Obstructive Pulmonary Disease (COPD). Complainant Brief, Exhibit 2; Record of Investigation ( ROI) at 185.
Complainant was originally hired as an Army Civilian Training, Education and Development System (ACTEDS) intern in 2017. ROI at 184, 189.
Director EEO/OCR explained that this is a two -year program. After successful completion of the
internship program, the Command looks for positions to place the ACTEDS interns . The interns
are placed based upon the needs of the Command. ROI at 219.
Compla inant asserted that, from her inception into the program, her goal was to return to
Washington, D.C., because of her medical condition and that she wanted to work in human
resources or EEO. ROI at 189. Complainant acknowledged that she was told that the Agency may not be able to place her in D.C., but that they would try to get her as close to D.C. as
possible. ROI at 189, 194. Complainant recounted that in February or March 2019, EEO Director (female, over 40, with a
disability) contacted her and asked if Fort Detrick would be an acceptable placement, and
Complainant said that was “great.” ROI at 189. On June 15, 2019, Complainant visited Fort
Detrick. ROI at 189. Program Manager recounted that she did not think that it would be a good idea for Complainant to visit Fort Detrick because, in her interactions with Complainant,
Complainant could become argumentative. ROI at 247. Complainant told human resources that EEO Officer approved a house hunting trip for Complainant which, in actuality, EEO Officer had not approved. ROI at 242. During her visit, Complainant purportedly told EEO Officer that EEO Officer ’s division was broken and Complainant told EEO Officer how she planned to fix it .
Despite this, upon being told by Complainant that she was 100 percent dis abled, with breathing
and allergy difficulties, EEO officer ordered Complainant an air purifier in anticipation of her arrival at Fort Detrick. ROI at 210.
EEO Officer stated that , after Complainant’s visit, she concluded that Complainant’s behavior
caused conflict among the staff at Fort Detrick . ROI at 212. Specifically, EEO Officer said that
she received a report from an employee that Complainant called EEO Officer the “Tasmanian
devil” during her visit. ROI at 212. EEO Officer said that s he was receiving comments from the
staff at Fort Detrick such as, “ if [Complainant is ] coming to EEO it’s going to be an issue.” ROI
at 212. EEO Officer believed Complainant’s behavior would cause more conflict if she worked at Fort Detrick, because Compla inant had managed to create conflict before she’d even arrived to
begin her position. ROI at 212. EEO Officer reported that she told Program Manager she did not
think Complainant would be a good fit for the office. Director EEO/OCR made the final decision
and said that he would let Complainant know. ROI at 212.
In July 2019, Complainant was notified that she was not assigned to Fort Detrick but , instead,
was assigned to Pr esidio at Monterey in California (POM). ROI at 190. Complainant stated that
she objected to the assignment due to her medical condition, the high cost of rent, and her
terminally ill mother who had stage IV kidney disease. ROI at 190. Director EEO/OCR asserted
that, in the conversation notifying Complainant of the change in assignment , Complainant
threatened to quit the ACTEDS program. Director EEO/OCR said that he encouraged
Complainant to reconsider that decision, because if she quit, she would have to repay the money to the government that had been invested in her training. Director EEO/OCR stated that he
encouraged her to take the position at POM and he would look for opportunities for her on the East Coast. ROI at 221.
On July 11, 2019, Complainant accepted the position at POM. ROI at 272. Complainant alleged
that Program Manager told her that she would be removed from the program if she did not accept
the position in POM. ROI at 195- 96.
Complainant opined that three coworkers (CW) were treated more favorably than she. Complainant alleged that CW1 (female, early twenties, with a d isability ), was treated more
favorably than Complainant, because she was supposedly offered several choices, but she denied
assignments and was assigned to Leavenworth, Kansas. ROI at 190. CW2 ( female,
approximately 50s, with a disability ), was noted by Complainant to have been assigned to her
hometown. ROI at 190. CW3 ( male, early 50s, with a disability ), was presumed by Complainant
to have been treated more favorably than she because Complainant believed that CW3 had been
given two assignments and, when h e refused, Complainant said that the Agency found him an
assignment at Fort Benning. ROI at 190. The evidence of record contradicts C omplainant’s
assumptions about all her named comparators . Neither CW1, CW2, nor CW3 was placed at their
first- choice location . ROI at 222, 261 .
Complainant alleged that the Agency did not engage in the interactive process required by the Rehabilitation Act. ROI at 192. Complainant asserted that she contacted her supervisors and
chain of command and request ed that she receive a reasonable accommodation (RA) to not be
assigned to California. ROI at 192. Complainant provided the EEO investigator a n undated and
unfinished email, without time, date, or address stamp , which stated, “The thing is, I have COPD
a chronic illness. It’s [sic] Very Respectfully, [Complainant] ” ROI at 204. There is no evidence
that it was sent to or received by anyone at the Agency. On July 11, 2019, EEO Director emailed
Director EEO/OCR relaying that Complainant stated that her medical condition would not allow
her to except the POM assignment, but that Complainant refused to resign from the Intern
Program. ROI at 224.
Agency policy outlined that the decision- maker for a requested RA is someone in the employee’s
chain of command, usually the employee’s immediate supervisor. ROI at 230. Director EEO/OCR and Program Manager denied that Complainant requested an RA, or provided any
relevant medical documentation , prior to her accepting the position at POM . ROI 169, 179, 248 .
Rather, Program Manager stated that Complainant asserted that she was unable to move to POM
because her mom was sick , and she was her mother’s sole caregiver. ROI at 169. Program
Manager reached out to the EEO officer at POM to let the EEO officer know that Compla inant’s
mother was sick , and that Complainant would likely be taking time off. ROI at 169, 245.
Program Manager said that she later discovered that Complainant’s mother was not located on the East coast, where Complainant was requesting placement, but was in the Midwest. ROI at
169. In a July 18, 2019, email, Program Manager relayed information from Deputy and Command
Disability Program Manager, that Complainant was to gather all of her documentation from her doctor, and her requested documentation, and submit the packet once she arrived at POM. ROI at
205. Complainant a cknowledge d that she submitted her RA and equipment requests when she
arrived at POM and her POM supervisor approved the requests. ROI at 197.
On Septemb er 5, 2019, Complainant filed an EEO complaint alleging that the Agency :
1. Discriminated against her on the bases of disability (physical) when on July 3, 2019, she
was informed her agreed upon assignment to Fort Detrick, Maryland was canceled and
she would be reassigned to Monterey, California. She was told if she did not take reassignment that she would be removed from her federal position ; she had to respond no
later than July 11, 2019, or her removal would be implemented;
2 and
2. Discriminated against her based upon disability (physical) when on July 18, 2019,
Program Manager , Program Manager, IMCOM, San Antonio, told her she could not
subm it her RA request until she received her new assignment. Thus, the Agency did not
accept her RA request or medical documents prior to her reassignment to California.
At the | Shayna P.,1
Complainant,
v.
Christine Wormuth,
Secretary,
Department of the Army,
Agency.
Appeal No. 2022000771
Agency No. ARHQOSA19JUL02577
DECISION
On November 23, 2021, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 26, 2021, final 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., 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 following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
During the relevant time , Complainant worked as a n Equal Employment Opportunity Specialist
at the Agency’s Fort Knox Installation in Fort Knox, Kentucky. Complainant is diagnosed with sarcoidosis/Chronic Obstructive Pulmonary Disease (COPD). Complainant Brief, Exhibit 2; Record of Investigation ( ROI) at 185.
Complainant was originally hired as an Army Civilian Training, Education and Development System (ACTEDS) intern in 2017. ROI at 184, 189.
Director EEO/OCR explained that this is a two -year program. After successful completion of the
internship program, the Command looks for positions to place the ACTEDS interns . The interns
are placed based upon the needs of the Command. ROI at 219.
Compla inant asserted that, from her inception into the program, her goal was to return to
Washington, D.C., because of her medical condition and that she wanted to work in human
resources or EEO. ROI at 189. Complainant acknowledged that she was told that the Agency may not be able to place her in D.C., but that they would try to get her as close to D.C. as
possible. ROI at 189, 194. Complainant recounted that in February or March 2019, EEO Director (female, over 40, with a
disability) contacted her and asked if Fort Detrick would be an acceptable placement, and
Complainant said that was “great.” ROI at 189. On June 15, 2019, Complainant visited Fort
Detrick. ROI at 189. Program Manager recounted that she did not think that it would be a good idea for Complainant to visit Fort Detrick because, in her interactions with Complainant,
Complainant could become argumentative. ROI at 247. Complainant told human resources that EEO Officer approved a house hunting trip for Complainant which, in actuality, EEO Officer had not approved. ROI at 242. During her visit, Complainant purportedly told EEO Officer that EEO Officer ’s division was broken and Complainant told EEO Officer how she planned to fix it .
Despite this, upon being told by Complainant that she was 100 percent dis abled, with breathing
and allergy difficulties, EEO officer ordered Complainant an air purifier in anticipation of her arrival at Fort Detrick. ROI at 210.
EEO Officer stated that , after Complainant’s visit, she concluded that Complainant’s behavior
caused conflict among the staff at Fort Detrick . ROI at 212. Specifically, EEO Officer said that
she received a report from an employee that Complainant called EEO Officer the “Tasmanian
devil” during her visit. ROI at 212. EEO Officer said that s he was receiving comments from the
staff at Fort Detrick such as, “ if [Complainant is ] coming to EEO it’s going to be an issue.” ROI
at 212. EEO Officer believed Complainant’s behavior would cause more conflict if she worked at Fort Detrick, because Compla inant had managed to create conflict before she’d even arrived to
begin her position. ROI at 212. EEO Officer reported that she told Program Manager she did not
think Complainant would be a good fit for the office. Director EEO/OCR made the final decision
and said that he would let Complainant know. ROI at 212.
In July 2019, Complainant was notified that she was not assigned to Fort Detrick but , instead,
was assigned to Pr esidio at Monterey in California (POM). ROI at 190. Complainant stated that
she objected to the assignment due to her medical condition, the high cost of rent, and her
terminally ill mother who had stage IV kidney disease. ROI at 190. Director EEO/OCR asserted
that, in the conversation notifying Complainant of the change in assignment , Complainant
threatened to quit the ACTEDS program. Director EEO/OCR said that he encouraged
Complainant to reconsider that decision, because if she quit, she would have to repay the money to the government that had been invested in her training. Director EEO/OCR stated that he
encouraged her to take the position at POM and he would look for opportunities for her on the East Coast. ROI at 221.
On July 11, 2019, Complainant accepted the position at POM. ROI at 272. Complainant alleged
that Program Manager told her that she would be removed from the program if she did not accept
the position in POM. ROI at 195- 96.
Complainant opined that three coworkers (CW) were treated more favorably than she. Complainant alleged that CW1 (female, early twenties, with a d isability ), was treated more
favorably than Complainant, because she was supposedly offered several choices, but she denied
assignments and was assigned to Leavenworth, Kansas. ROI at 190. CW2 ( female,
approximately 50s, with a disability ), was noted by Complainant to have been assigned to her
hometown. ROI at 190. CW3 ( male, early 50s, with a disability ), was presumed by Complainant
to have been treated more favorably than she because Complainant believed that CW3 had been
given two assignments and, when h e refused, Complainant said that the Agency found him an
assignment at Fort Benning. ROI at 190. The evidence of record contradicts C omplainant’s
assumptions about all her named comparators . Neither CW1, CW2, nor CW3 was placed at their
first- choice location . ROI at 222, 261 .
Complainant alleged that the Agency did not engage in the interactive process required by the Rehabilitation Act. ROI at 192. Complainant asserted that she contacted her supervisors and
chain of command and request ed that she receive a reasonable accommodation (RA) to not be
assigned to California. ROI at 192. Complainant provided the EEO investigator a n undated and
unfinished email, without time, date, or address stamp , which stated, “The thing is, I have COPD
a chronic illness. It’s [sic] Very Respectfully, [Complainant] ” ROI at 204. There is no evidence
that it was sent to or received by anyone at the Agency. On July 11, 2019, EEO Director emailed
Director EEO/OCR relaying that Complainant stated that her medical condition would not allow
her to except the POM assignment, but that Complainant refused to resign from the Intern
Program. ROI at 224.
Agency policy outlined that the decision- maker for a requested RA is someone in the employee’s
chain of command, usually the employee’s immediate supervisor. ROI at 230. Director EEO/OCR and Program Manager denied that Complainant requested an RA, or provided any
relevant medical documentation , prior to her accepting the position at POM . ROI 169, 179, 248 .
Rather, Program Manager stated that Complainant asserted that she was unable to move to POM
because her mom was sick , and she was her mother’s sole caregiver. ROI at 169. Program
Manager reached out to the EEO officer at POM to let the EEO officer know that Compla inant’s
mother was sick , and that Complainant would likely be taking time off. ROI at 169, 245.
Program Manager said that she later discovered that Complainant’s mother was not located on the East coast, where Complainant was requesting placement, but was in the Midwest. ROI at
169. In a July 18, 2019, email, Program Manager relayed information from Deputy and Command
Disability Program Manager, that Complainant was to gather all of her documentation from her doctor, and her requested documentation, and submit the packet once she arrived at POM. ROI at
205. Complainant a cknowledge d that she submitted her RA and equipment requests when she
arrived at POM and her POM supervisor approved the requests. ROI at 197.
On Septemb er 5, 2019, Complainant filed an EEO complaint alleging that the Agency :
1. Discriminated against her on the bases of disability (physical) when on July 3, 2019, she
was informed her agreed upon assignment to Fort Detrick, Maryland was canceled and
she would be reassigned to Monterey, California. She was told if she did not take reassignment that she would be removed from her federal position ; she had to respond no
later than July 11, 2019, or her removal would be implemented;
2 and
2. Discriminated against her based upon disability (physical) when on July 18, 2019,
Program Manager , Program Manager, IMCOM, San Antonio, told her she could not
subm it her RA request until she received her new assignment. Thus, the Agency did not
accept her RA request or medical documents prior to her reassignment to California.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant initia lly requested a hearing
before an AJ, and an AJ was assigned to the complaint. The case was assigned Hearing Number
570-2020- 01111X . Complainant subsequently withdrew her hearing request and on July 26,
2021, the assigned AJ dismissed the Hearing Request a nd directed the issuance of a FAD.
In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant’s representative asserts that the Commission should issue a default judgment against the Agency, as the Agency issued its FAD on November 26, 2021, as opposed to
September 24, 2021. In the a lternative, the representative argues that the Agency should pay
attorney’s fees and costs.
2 Complainant originally claimed that claim 1 was discrimination due to sex (female) and age
(60) discrimination, in addition to discrimination based upon disability. Complainant’s brief, however, clearly specifies she is not challenging the FAD as to their findings of sex and age. To that end, we note that the Commission has the discretion to re view only those issues specifically
raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD -110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). As Complainant did not contest
the Agency’s decision concerning sex or age discrimination, we need not address these claims in
the instant decision.
With regard to the substance of the appeal, Complainant contends that the Agency failed to
accommodate her medical conditions and that the Agency’s officials were untruthful in their affidavits that they were unaware of Complainant’s request for an accommodation. Complainant’s counsel asserts that the “unfair and improper conduct by management officials” justifies default judgment.
The Agency counters that Complain ant did not request an RA prior to moving to California and
that Complainant has not met her burden to show that the Agency failed to act on Complainant’s request.
ANALYSIS AND FINDINGS
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”).
Sanctions
On appeal, Complainant requests that the Commission issue a sanction against the Agency regarding the processing of the supplemental investigation. Pursuant to 29 C.F.R. § 1614.108(c)(3), when an Agency is untimely with requested documents, records, or witnesses, the Commission may draw and adverse inference, exclude the evidence, or take other action as
appropriate, the regulations are clear that these actions are permissible and not required. 29 C.F.R. § 1614.108(c)(3). In the current case, the Age ncy was notified on July 26, 2021, that the AJ granted Complainant’s
motion to withdraw her hearing request . To be considered timely, in this case, the Agency should
have issued the FAD no later than September 24, 2021. 29 C.F.R. § 1614.110. The Agency did
not issue the FAD until November 26, 2021, approximately two months later.
However, Complainant did not present any evidence of prejudicial effect as a consequence of this delay. As such, the Commission declines to issue sanction s against the Agency at this time.
Complainant’s counsel further seeks sanctions against the Agency in the form of summary judgment “ for failing to develop an impartial factual record based on the patently false testimony
from its two primary witnesses .”
In this case, Complaina nt’s counsel has not produced any evidence that these statements are
“patently false ”. Complainant’s counsel voluntarily withdrew Complainant’s hearing request,
where an AJ could have made a determination as to credibility. As Complainant’s counsel has
not provided the Commission with evidence of dishonesty on the part of Agency officials, and
expressly denied the Commission the opportunity for an AJ to make such a determination, the
Commission declines to issue sanctions against the Agency.3
Disparate Treatment —Claim 1
A claim of disparate treatment is examined under the three -part analysis first enunciated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, s he
must f irst 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
Constr. Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the A gency to articulate
a legitimate, non -discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs . v. Burdine ,
450 U.S. 248, 253 (1981). Once the A gency 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 Ctr. v. Hicks , 509 U.S.
502 (1993).
The Commission will assume, without so finding, that Complainant established a prima facie case of discrimination concerning her change of assignment from Fort Detrick to POM . We now
turn to the Agency to provide a legi timate non -discriminatory reason for its decision. We find
that it has done so here. The Agency asserts that EEO Officer withdrew the offer at Fort Detrick
due to Complainant’s own conduct . After numerous instances of Complainant’s conduct,
witnessed by EEO Officer and her staff , such as explaining to EEO Officer that her department
was broke n, referring to EEO Officer as either a devil or “Tasmanian devil,” and telling HR that
EEO Officer approved a house hunting trip that EEO Officer did not approve , EEO Officer did
not think that Complainant would be a good fit for the department. After hearing comments from employees such as, “if [Complainant is] coming to EEO it’s going to be an issue,” EEO Officer
assessed that Complainant’s brief presence caused conflict among the staff at Fort Detrick, and
EEO Officer believed it would only worsen if Complainant worked at Fort Detrick on a
permanent basis. EEO Officer ’s opinion of Complainant’s behavior was consi stent with Program
Manager ’s, who did not think Complainant’s visit to Fort Detrick was well -advised, as Program
Manager found Complainant to have a propensity to be combative.
3 The Commission notes that Complainant’s counsel made a charge of falsehood against an
Agency official without evidence thereof. This is a serious allegation, as the statemen ts in the
affidavits were provided under oath. The Commission cautions counsel regarding such statements and accusations, as the American Bar Association has found, “In representing a client, a lawyer shall not use means that have no substantial purpose ot her than to embarrass, delay, or
burden a third person…” may arise to unethical conduct. M
ODEL RULES OF PRO. CONDUCT r. 4.4.
While Complainant alleges that the decision to withdraw her offer of placemen t at Fort Detrick
was made based upon discriminatory animus, there is no evidence of such a motivation in the
record. To the contrary, upon hearing Complainant assert that she was 100 percent disabled, had
issues with breathing, and had various allergies, EEO Officer ordered an air purifier in
anticipation of Complainant’s arrival . The withdrawal of the employment offer came only after
the Fort Detrick staff complained to EEO Officer about Complainant’s visit.
With regard to Complainant’s placement at POM, the Agency asserts that POM was the only
location that was available for Complainant after Fort Detrick fell through . Though Complainant
stated that she did not want to go to POM, she knew, from the onset of the program, that while
her preferences would b e considered , she would ultimately be placed based upon the needs of the
Agency. The Agency proffers that, once the offer from Fort Detrick was withdrawn, there were no other available positions. Though Complainant, as an argument for pretext, states that CW1, CW2, and CW3 were given preferential treatment relative to her, the evidence does not support this assertion. None of the pr offered comparators received their first- choice placement.
With regard to Complainant’s claim that “[s]he was told if she did not take reassignment that she would be removed from her federal position; she had to respond no later than July 11, 2019, or her removal would be implemented,” the Complainant was aware that, at the end of the internship program, she would be placed in a position consistent with the needs of the Agency.
Complainant successfully completed the program and had a placement. To refuse the position she was offered would have, objectively speaking , placed Complainant in breach of that contract.
The Agency informing her of that fact, and reminding her of her contractual obligations which
she freely entered, is not discriminatory. Whether she agreed with the Agency ’s reasons, or even
whether the Comm ission finds the decision to be best, is not relevant to the issue at hand. T he
Commission cannot second- guess an Agency’s decisions involving personnel unless there is
evidence of a discriminatory motivation on the part of the officials responsible for ma king those
decisions. See Burdine , 450 U.S. at 259.
Ultimately, a Complainant must prove, by a preponderance of the evidence, that the agency’s
articulated reason for its action was not its true reason, but a sham or pretext for unlawful discrimination. Burdine , 450 U.S. at 253; see Reeves, 530 U.S. at 143; Hicks , 509 U.S. at 511;
McDonnell Douglas , 411 U.S. at 804. A complainant’s generalized testimony alleging a
subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. and Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4,
2006) . The question is not whether the agency made the best, or even a sound, business decision;
it is whether the real reason is discrimination. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because sub jective belief,
however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of
the Treasury , EEOC Appeal No. 0120181968, 2019 WL 4945106, at 6 (Sept. 24, 2019).
Complainant has afforded no such persuas ive evidence here.
Reasonable Accommodation— Claim 2
An agency must make reasonable accommodation for the known physical and mental limitations
of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A qualified individual with a disability is an “individual with a disability” who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with
or without reasonable accommodation, can perfor m the essential functions of such position. 29
C.F.R. § 1630.2(m).
The complainant has the initial responsibility of showing that a suggested accommodation is
“reasonable” (i.e., that is generally plausible in the job being performed by the individual). See
U.S. Airways. Inc. v. Barnett , 535 U.S. 391 (2002), EEOC Enforcement Guidance No. 915.002.
While this is not a high burden for the complainant, it is an initial plausibility threshold that the complainant must meet.
Once the complainant shows that the requested accommodation is plausible, the burden then shifts to the agency to show whether the accommodation, even if plausible, would nonetheless impose an undue hardship (i.e., a significant difficulty or expense) on the operations of the agency. See Harge v. Dep't of Veteran's Affs ., EEOC Appeal No. 0120111521 (Dec. 4, 2014).
After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the
appropriate reasonable accommodation. See EEOC Enforcement Guidance No. 915.002, see
also, Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012).
Protected individuals are entitled to reasonable accommodation, but they are not necessarily
entitled to their accommodation of choice. Castaneda v. U .S. Postal Serv. , EEOC Appeal No.
01931005 (Feb. 17, 1994). Improper termination of the interactive process constitutes an
improper denial of a reasonable accommodation. See Harvey G . v. Dep't of the Interior , EEOC
Appeal Nos. 0120132052 & 0120150844 (Feb. 4, 2016).
The Commission finds that Complainant, herself, was the reason that she was not afforded an RA prior to her acceptance of the POM position. Prior to July 11, 2019, the da y that Complainant
accepted the assignment at POM, Complainant had made not a single request for an RA .
Complainant’s first and only RA request occurred in September 2019, over two years after she began her internship at the Agency. ROI p. 61. It was not until after Complainant’s own conduct
caused her preferred location placement to be withdrawn that Complainant asserted a need for a reasonable accommodation. In short, Complainant did not provide evidence sufficient to
convince the decision maker that she requested an RA prior to accepting the position at POM. Moreover , the Commission finds that Complainant has failed to establish that her requested RA
is reasonable . The only available position at the time was in PO M. Complainant provided no
documentation or evidence that her medical condition would preclude her from working at POM.
She asserts that her medical providers are in the D.C. metro area, her location of choice, but she
has presented no evidence that there were no providers for her COPD in the POM area. As to her arguments that the air quality is not conducive to her respiratory health in the area, she has not provided any evidence that this area is substantially worse for her respiratory health than other
areas, or that she is unable to work at POM with other accommodations. Complainant conceded
that POM management accepted her application for an RA and she was provided with everything
she requested. Furthermore, the evidence indicates that Complainant was, in fact, able to perform her job at POM. As Complainant has not provided any evidence, aside from her own opinions,
that she could not work in California, and her reasons for not wishing to relocate to POM ranged from rent to medical providers to caring fo r her mother, the Commission concludes that the
request to not relocate to California was not, in fact, an RA, but a personal preference. An Agency does not violate EEOC regulations merely by not providing C omplainant the
accommodation of her choosing. Cas taneda , EEOC Appeal No. 01931005.
To the extent that Complainant argues that requiring that she wait until arriving in California constitutes an unnecessary delay in the RA process, the Commission cannot agree. EEOC Guidance No. 915.002 at Q. 10, Yessenia H. v. Dep't of Veterans Affs ., EEOC Appeal No.
0720070027 (Oct. 13, 2015) . The Agency was notified of a need for an RA on the day she had
accepted the position at POM. As policy dictated that the primary decision maker is an employee’s supervisor, in this case an individual at POM, asking that Complainant provide all necessary documentation to her POM supervisor at her gaining unit of employment is not
deemed to be an unnecessary delay in the RA process.
To the extent that Complainant argues, in an exhibit for her brief , that she was required to
relocate to Washington, D.C., two years after her move to POM, due to a severe exacerbation of
her respiratory illness, she provides no evidence in support of that assertion. In light of the above, Complainant has not proven that the Agency denied her an RA or that the Agency delayed an R A in bad faith, and the Commission finds that the Agency is not in violation
of Rehabilitation Act.
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 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thir ty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall h ave twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO M D-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failure to file w ithin the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of 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
April 11, 2022
Date | [
"Harge v. Dep't of Veteran's Affs ., EEOC Appeal No. 0120111521 (Dec. 4, 2014)",
"Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012)",
"Castaneda v. U .S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994)",
"Yessenia H. v. Dep't of Veterans Affs ., EEOC Appeal No. 0720070027 (Oc... | [
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432 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a50329.txt | 01a50329.txt | TXT | text/plain | 6,089 | 05 . Robert D. Wanat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | August 31, 2004 | Appeal Number: 01A50329
Legal Analysis:
the Commission's regulations, since complainant failed
to contact an EEO counselor within 45 days of the events or the associated
personnel actions.
The evidence of record shows that the agency's EEO Office received two
letters from complainant on July 8, 2004. According to the record, the
letters, dated April 16 and May 16, 2004, were placed in the internal
mail box at complainant's work facility, which was formerly assigned to
EEO and now used by the Diversity unit. Diversity forwarded the letters
to EEO through the internal agency mail delivery. At least one year
prior to April 2004, EEO had closed its offices at that location.
The agency presented sufficient evidence to show that the EEO poster was
prominently displayed on employee bulletin boards, at least as of April
8, 2004, the date of complainant's return to work, and identified the
correct address and telephone number for EEO contact. Complainant did
not refute that the information was available to him.
Complainant contended that he was unable to read the EEO poster while
out of work and not informed of the change for EEO contact. We note,
however, that he returned to work on April 8, 2004, prior to sending his
first letter, and could have read the poster at that time to discover
the correct address for EEO contact. Further, he acknowledged that
he was aware of the requirement to contact an EEO counselor but acted
on out-dated information. It was complainant's obligation to read
the employee bulletin boards and timely bring his complaint(s) to the
attention of an EEO counselor. 29 C.F.R. § 1614.105(a)(1). For the above
reasons, complainant's appeal is dismissed. 29 C.F.R. § 1614.107(a)(2).
Final Decision:
Accordingly, the agency's decision was proper and is AFFIRMED. | Robert D. Wanat v. United States Postal Service
01A50329
01-31-05
.
Robert D. Wanat,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50329
Agency No. 1B-065-0022-04
DISMISSAL
Robert D. Wanat (complainant) filed an appeal from the August 31, 2004,
final decision of the United States Postal Service (agency) dismissing
his complaint. The appeal is timely filed (see 29 C.F.R. § 1614.402(a))
and is accepted in accordance with 29 C.F.R. § 1614.405.
Complainant claimed discrimination based on disability when he was not
allowed to return to work on crutches from December 23, 2003, through
April 8, 2004, and his absence was charged as FMLA leave. In its final
decision, the agency dismissed the complaint pursuant to 29 C.F.R. §
1614.107(a)(2) of the Commission's regulations, since complainant failed
to contact an EEO counselor within 45 days of the events or the associated
personnel actions.
The evidence of record shows that the agency's EEO Office received two
letters from complainant on July 8, 2004. According to the record, the
letters, dated April 16 and May 16, 2004, were placed in the internal
mail box at complainant's work facility, which was formerly assigned to
EEO and now used by the Diversity unit. Diversity forwarded the letters
to EEO through the internal agency mail delivery. At least one year
prior to April 2004, EEO had closed its offices at that location.
The agency presented sufficient evidence to show that the EEO poster was
prominently displayed on employee bulletin boards, at least as of April
8, 2004, the date of complainant's return to work, and identified the
correct address and telephone number for EEO contact. Complainant did
not refute that the information was available to him.
Complainant contended that he was unable to read the EEO poster while
out of work and not informed of the change for EEO contact. We note,
however, that he returned to work on April 8, 2004, prior to sending his
first letter, and could have read the poster at that time to discover
the correct address for EEO contact. Further, he acknowledged that
he was aware of the requirement to contact an EEO counselor but acted
on out-dated information. It was complainant's obligation to read
the employee bulletin boards and timely bring his complaint(s) to the
attention of an EEO counselor. 29 C.F.R. § 1614.105(a)(1). For the above
reasons, complainant's appeal is dismissed. 29 C.F.R. § 1614.107(a)(2).
CONCLUSION
Accordingly, the agency's decision 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
____01-31-05______________
Date
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433 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a14755.txt | 01a14755.txt | TXT | text/plain | 6,011 | Dexter Allison v. Department of Transportation 01A14755 February 12, 2002 . Dexter Allison, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency. | February 12, 2002 | Appeal Number: 01A14755
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. By letter dated October 3, 2000, complainant was
informed that he would be reassigned effective October 18, 2000.
On October 13, 2000, complainant filed a grievance concerning his
reassignment. By letter dated March 7, 2001, complainant's grievance
was denied. On May 29, 2001, complainant sought EEO counseling claiming
that he had been discriminated against on the basis of race when he
was reassigned. Subsequently, complainant filed a formal complaint
concerning this issue.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact after finding that complainant failed
to seek EEO counseling within 45 days of October 18, 2000, when his
reassignment became effective.
On appeal, complainant's attorney argues that although complainant sought
EEO counseling on October 17, 2000, he was told that if he wished to file
a grievance, he would have to wait for the grievance's outcome before
seeking EEO counseling. In response to the appeal, the agency contends
that the reassignment's effective date was October 18, 2000, and that
complainant failed to seek EEO counseling within 45 days of said date.
A review of the record shows that complainant, who was reassigned
effective October 18, 2000, filed a grievance on October 13, 2000, and
that after the grievance was denied by letter dated March 7, 2001, he
sought EEO counseling on May 29, 2001. The Commission has consistently
held that internal appeals or informal efforts to challenge an agency's
adverse action and/or the filing of a grievance do not toll the running of
the time limit to contact an EEO Counselor. See Hosford v. Department of
Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989).
Final Decision:
Accordingly, complainant's May 29, 2001 initial EEO Counselor contact was not timely. Moreover, we determine that complainant's bare assertion, first raised on appeal, that he sought EEO counseling on October 17, 2000, without more, is not sufficient to warrant an extension of the time limit for initiating EEO contact. Accordingly, the agency's final decision dismissing the complaint is AFFIRMED. | Dexter Allison v. Department of Transportation
01A14755
February 12, 2002
.
Dexter Allison,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A14755
Agency No. DOT-4-01-4096
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. By letter dated October 3, 2000, complainant was
informed that he would be reassigned effective October 18, 2000.
On October 13, 2000, complainant filed a grievance concerning his
reassignment. By letter dated March 7, 2001, complainant's grievance
was denied. On May 29, 2001, complainant sought EEO counseling claiming
that he had been discriminated against on the basis of race when he
was reassigned. Subsequently, complainant filed a formal complaint
concerning this issue.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor contact after finding that complainant failed
to seek EEO counseling within 45 days of October 18, 2000, when his
reassignment became effective.
On appeal, complainant's attorney argues that although complainant sought
EEO counseling on October 17, 2000, he was told that if he wished to file
a grievance, he would have to wait for the grievance's outcome before
seeking EEO counseling. In response to the appeal, the agency contends
that the reassignment's effective date was October 18, 2000, and that
complainant failed to seek EEO counseling within 45 days of said date.
A review of the record shows that complainant, who was reassigned
effective October 18, 2000, filed a grievance on October 13, 2000, and
that after the grievance was denied by letter dated March 7, 2001, he
sought EEO counseling on May 29, 2001. The Commission has consistently
held that internal appeals or informal efforts to challenge an agency's
adverse action and/or the filing of a grievance do not toll the running of
the time limit to contact an EEO Counselor. See Hosford v. Department of
Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989). Accordingly,
complainant's May 29, 2001 initial EEO Counselor contact was not timely.
Moreover, we determine that complainant's bare assertion, first raised
on appeal, that he sought EEO counseling on October 17, 2000, without
more, is not sufficient 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
February 12, 2002
Date
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434 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a55951.txt | 01a55951.txt | TXT | text/plain | 8,310 | Banyat Wangdeesiriskul v. United States Postal Service 01A55951 January 27, 2006 . Banyat Wangdeesiriskul, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | January 27, 2006 | Appeal Number: 01A55951
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 15, 2005, dismissing his formal EEO complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq.
On May 10, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint filed on July 22, 2005, complainant claimed that
he was subjected to discrimination on the bases of race (Thai/Chinese),
disability, and in reprisal for prior EEO activity when:
on a continuing basis since 2004, management has denied him promotion
and pay as a Level 7 Automotive Technician.
In its final decision, the agency dismissed the instant 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 in May 2005, which it found to be beyond
the 45-day limitation period. The agency further determined that
complainant had or should have had reasonable suspicion of unlawful
employment discrimination at the time of the denial of promotion; and
that he was fully aware of the EEO time limits because he previously
participated in the EEO process. Furthermore, the agency determined that
the record reflects that promotion dates for the positions of Automotive
Technician occurred from March 24, 2001 to July 24, 2004 which was well
beyond complainant's May 2005 EEO contact.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the alleged discriminatory event occurred
in 2004, but that complainant did not initiate contact with an EEO
Counselor until May 2005, which was beyond the forty-five (45) 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 vs. 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. Therefore, we find that the agency properly dismissed
the instant complaint for untimely EEO Counselor contact.
Finally, the Commission rejects complainant's assertion that the matter
raised in the instant complaint is a continuing violation. The Commission
determines, instead, that the instant complaint addresses alleged discrete
discriminatory actions that occurred well prior to complainant's initial
EEO Counselor contact.
Final Decision:
Accordingly, the agency's final decision dismissing the instant complaint on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED. | Banyat Wangdeesiriskul v. United States Postal Service
01A55951
January 27, 2006
.
Banyat Wangdeesiriskul,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55951
Agency No. 4F-940-0089-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 15, 2005, dismissing his formal EEO complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq.
On May 10, 2005, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint filed on July 22, 2005, complainant claimed that
he was subjected to discrimination on the bases of race (Thai/Chinese),
disability, and in reprisal for prior EEO activity when:
on a continuing basis since 2004, management has denied him promotion
and pay as a Level 7 Automotive Technician.
In its final decision, the agency dismissed the instant 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 in May 2005, which it found to be beyond
the 45-day limitation period. The agency further determined that
complainant had or should have had reasonable suspicion of unlawful
employment discrimination at the time of the denial of promotion; and
that he was fully aware of the EEO time limits because he previously
participated in the EEO process. Furthermore, the agency determined that
the record reflects that promotion dates for the positions of Automotive
Technician occurred from March 24, 2001 to July 24, 2004 which was well
beyond complainant's May 2005 EEO contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the alleged discriminatory event occurred
in 2004, but that complainant did not initiate contact with an EEO
Counselor until May 2005, which was beyond the forty-five (45) 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 vs. 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. Therefore, we find that the agency properly dismissed
the instant complaint for untimely EEO Counselor contact.
Finally, the Commission rejects complainant's assertion that the matter
raised in the instant complaint is a continuing violation. The Commission
determines, instead, that the instant complaint addresses alleged discrete
discriminatory actions that occurred well prior to complainant's initial
EEO Counselor contact.
Accordingly, the agency's final decision dismissing the instant
complaint on the grounds of untimely EEO Counselor contact was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 27, 2006
__________________
Date
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435 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A02874.txt | 01A02874.txt | TXT | text/plain | 6,652 | Reynaldo E. Gladney v. United States Postal Service 01A02874 February 26, 2001 . Reynaldo E. Gladney, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. | February 26, 2001 | Appeal Number: 01A02874
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 contact.<1> The record discloses that the alleged discriminatory
event occurred on August 29, 1999 (complainant received a Notice of
Removal), but that complainant did not initiate contact with an EEO
Counselor until November 23, 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. The
Commission notes that on appeal, complainant asserts that he telephoned
an EEO Counselor on October 12, 1999, about his termination; that the
Counselor informed him that he had filed a grievance on the matter;
and that the Counselor informed him that he could not simultaneously
file a grievance and an EEO complaint. Complainant argues that after
he contacted an entity that he identified as the Labor and Hourly
Wage Department, he visited its EEO office, which ultimately led
him to contact the agency EEO office in November 1999. However, the
record contains an affidavit from an EEO Counselor. Therein, the EEO
Counselor stated that complainant contacted her on October 22, 1999;
that upon his inquiry, she indicated that he had forty-five days from
the date of alleged discrimination to pursue the EEO complaint process;
and that he left without indicating that he wished to pursue the EEO
complaint process. The Counselor further stated that she did not tell
complainant that he had to file a grievance before he filed an EEO
complaint. The record contains affidavits from other EEO personnel,
who attest that they did not provide complainant with the information
he discussed on appeal. Under these circumstances, the Commission
determines that the agency's final decision dismissing complainant's
complaint was proper and is AFFIRMED. | Reynaldo E. Gladney v. United States Postal Service
01A02874
February 26, 2001
.
Reynaldo E. Gladney,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02874
Agency No. 1I-641-0008-00
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 contact.<1> The record discloses that the alleged discriminatory
event occurred on August 29, 1999 (complainant received a Notice of
Removal), but that complainant did not initiate contact with an EEO
Counselor until November 23, 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. The
Commission notes that on appeal, complainant asserts that he telephoned
an EEO Counselor on October 12, 1999, about his termination; that the
Counselor informed him that he had filed a grievance on the matter;
and that the Counselor informed him that he could not simultaneously
file a grievance and an EEO complaint. Complainant argues that after
he contacted an entity that he identified as the Labor and Hourly
Wage Department, he visited its EEO office, which ultimately led
him to contact the agency EEO office in November 1999. However, the
record contains an affidavit from an EEO Counselor. Therein, the EEO
Counselor stated that complainant contacted her on October 22, 1999;
that upon his inquiry, she indicated that he had forty-five days from
the date of alleged discrimination to pursue the EEO complaint process;
and that he left without indicating that he wished to pursue the EEO
complaint process. The Counselor further stated that she did not tell
complainant that he had to file a grievance before he filed an EEO
complaint. The record contains affidavits from other EEO personnel,
who attest that they did not provide complainant with the information
he discussed on appeal. Under these circumstances, the Commission
determines that the agency's final decision dismissing complainant's
complaint was proper and 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
February 26, 2001
__________________
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
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
| [
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436 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120111730.txt | 0120111730.txt | TXT | text/plain | 8,814 | Kenneth R. Slye, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency. | November 18, 2010 | Appeal Number: 0120111730
Background:
At the time of events giving rise to this complaint, Complainant worked
as a General Tool and Equipment Mechanic at the Agencyâs Bonneville
Power Administration in Vancouver, Washington. On July 28, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination on the bases of sex (male) and in reprisal for
prior protected EEO activity when:
1. He was informed on December 3, 2009, that the Aircraft Machinist
Foreman III position had been permanently filled, and he had not been
referred to the selecting official; and
2. He was notified by memorandum, dated March 10, 2010, that he
was no longer considered qualified for the bid list for Aircraft
Mechanic/Aircraft Machinist jobs and that he was removed from the bid
list, both prospectively and retroactively, from December 2007 to the
present.1
In its decision, the Agency dismissed the complaint pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency
determined that the alleged incidents occurred on December 3, 2009, and
March 10, 2010, respectively and Complainantâs initial EEO Counselor
contact occurred on June 8, 2010, beyond the 45-day limitation period.
In addition, the Agency noted that Complainant had served as a
collateral-duty EEO Counselor from 2008 to early 2010 and therefore
should have been aware of time limits for contacting an EEO Counselor.
As a result, the Agency dismissed the complaint for untimely EEO
Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that as an EEO Counselor, he was trained
to resolve disputes at the lowest possible level and to take the most
recent action to date. Complainant argues that he received a memorandum
dated June 7, 2010 and contacted an EEO Counselor on June 8, 2010.
Further, Complainant alleges that he contacted an EEO Counselor during
the week of December 21, 2009, and prior to meeting with her, decided
to pursue a resolution at the lowest possible level. As a result,
Complainant contends that he timely contacted an EEO Counselor and
requests that the Commission reverse the Agencyâs dismissal.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a General Tool and Equipment Mechanic at the Agencyâs Bonneville
Power Administration in Vancouver, Washington. On July 28, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination on the bases of sex (male) and in reprisal for
prior protected EEO activity when:
1. He was informed on December 3, 2009, that the Aircraft Machinist
Foreman III position had been permanently filled, and he had not been
referred to the selecting official; and
2. He was notified by memorandum, dated March 10, 2010, that he
was no longer considered qualified for the bid list for Aircraft
Mechanic/Aircraft Machinist jobs and that he was removed from the bid
list, both prospectively and retroactively, from December 2007 to the
present.1
In its decision, the Agency dismissed the complaint pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency
determined that the alleged incidents occurred on December 3, 2009, and
March 10, 2010, respectively and Complainantâs initial EEO Counselor
contact occurred on June 8, 2010, beyond the 45-day limitation period.
In addition, the Agency noted that Complainant had served as a
collateral-duty EEO Counselor from 2008 to early 2010 and therefore
should have been aware of time limits for contacting an EEO Counselor.
As a result, the Agency dismissed the complaint for untimely EEO
Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that as an EEO Counselor, he was trained
to resolve disputes at the lowest possible level and to take the most
recent action to date. Complainant argues that he received a memorandum
dated June 7, 2010 and contacted an EEO Counselor on June 8, 2010.
Further, Complainant alleges that he contacted an EEO Counselor during
the week of December 21, 2009, and prior to meeting with her, decided
to pursue a resolution at the lowest possible level. As a result,
Complainant contends that he timely contacted an EEO Counselor and
requests that the Commission reverse the Agencyâs dismissal.
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 âreasonable suspicionâ
standard (as opposed to a âsupportive factsâ standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Depât 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.
The record establishes that Complainant was informed on December 3,
2009, that he had not been referred for selection for the Aircraft
Machinist Foreman position. Complainant asserted that he contacted an
EEO Counselor during the week of December 21, 2009 and had arranged for
an appointment. Complainant confirmed that he canceled that meeting and
decided to pursue the matter at the lowest possible level. Therefore,
the record establishes that Complainant had a reasonable suspicion that
discrimination had occurred in December 2009. Complainant elected to
pursue a resolution to the matter outside of the EEO process until his
June 8, 2010 EEO Counselor contact; more than 90 days after receiving
the March 10, 2010 memorandum citing specific reasons why he was not
considered qualified for the bid list and why he had been removed from
the bid list. We conclude that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | 
Kenneth R. Slye,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120111730
Agency No. 10-0100-BPA
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated November 18, 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. Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a General Tool and Equipment Mechanic at the Agencyâs Bonneville
Power Administration in Vancouver, Washington. On July 28, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination on the bases of sex (male) and in reprisal for
prior protected EEO activity when:
1. He was informed on December 3, 2009, that the Aircraft Machinist
Foreman III position had been permanently filled, and he had not been
referred to the selecting official; and
2. He was notified by memorandum, dated March 10, 2010, that he
was no longer considered qualified for the bid list for Aircraft
Mechanic/Aircraft Machinist jobs and that he was removed from the bid
list, both prospectively and retroactively, from December 2007 to the
present.1
In its decision, the Agency dismissed the complaint pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency
determined that the alleged incidents occurred on December 3, 2009, and
March 10, 2010, respectively and Complainantâs initial EEO Counselor
contact occurred on June 8, 2010, beyond the 45-day limitation period.
In addition, the Agency noted that Complainant had served as a
collateral-duty EEO Counselor from 2008 to early 2010 and therefore
should have been aware of time limits for contacting an EEO Counselor.
As a result, the Agency dismissed the complaint for untimely EEO
Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that as an EEO Counselor, he was trained
to resolve disputes at the lowest possible level and to take the most
recent action to date. Complainant argues that he received a memorandum
dated June 7, 2010 and contacted an EEO Counselor on June 8, 2010.
Further, Complainant alleges that he contacted an EEO Counselor during
the week of December 21, 2009, and prior to meeting with her, decided
to pursue a resolution at the lowest possible level. As a result,
Complainant contends that he timely contacted an EEO Counselor and
requests that the Commission reverse the Agencyâs dismissal.
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 âreasonable suspicionâ
standard (as opposed to a âsupportive factsâ standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Depât 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.
The record establishes that Complainant was informed on December 3,
2009, that he had not been referred for selection for the Aircraft
Machinist Foreman position. Complainant asserted that he contacted an
EEO Counselor during the week of December 21, 2009 and had arranged for
an appointment. Complainant confirmed that he canceled that meeting and
decided to pursue the matter at the lowest possible level. Therefore,
the record establishes that Complainant had a reasonable suspicion that
discrimination had occurred in December 2009. Complainant elected to
pursue a resolution to the matter outside of the EEO process until his
June 8, 2010 EEO Counselor contact; more than 90 days after receiving
the March 10, 2010 memorandum citing specific reasons why he was not
considered qualified for the bid list and why he had been removed from
the bid list. We conclude that Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Accordingly, the Agency's final
decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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
November 23, 2011
Date
1 For ease of understanding, these allegations have been rearranged in
chronological order.
------------------------------------------------------------
------------------------------------------------------------
| [
"Howard v. Depât of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)"
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437 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142339.txt | 0120142339.txt | TXT | text/plain | 9,030 | June 3, 2014 | Appeal Number: 0120142339
Background:
At the time of the events giving rise to this complaint, Complainant worked as a Postal Support Employee; specifically, a City Carrier Assistant, at the Agency's Gainesville Carrier Annex facility, in Gainesville, Georgia. On September 18, 2013, Complainant requested annual leave because he had to take a Project Management Professional (PMP) exam that the Agency was previously notified about. Complainant alleged that his request for annual leave was denied without appropriate notice on October 15, 2013. Complainant stated that the Agency deliberately waited until the week before to deny his leave request. The Agency charged Complainant with Absence Without Leave (AWOL) from October 21, 2013 through November 2, 2013, even though he stated that he only took leave from October 21-26, 2013 and was told not to come in the following week. As a result, he was issued a notice of removal, effective December 13, 2013.
On February 3, 2014, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful and he received a Notice of Right to File an Individual Complaint of Discrimination on May 8, 2014. On May 13, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination, on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when Supervisor, Distribution Operations issued a Notice of Removal dated November 13, 2013, with an effective date of December 13, 2013.
The Agency dismissed the complaint on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant's claim was untimely because he contacted the EEO counselor 7 days after the 45 day deadline for initial contact. The Agency also determined that Complainant provided no evidence that he was unaware of the time limit for contacting an EEO Counselor or was prevented from contacting an EEO Counselor due to obstacles beyond his control. Additionally, the Agency found that an EEO poster was appropriately displayed at Complainant's facility and the record showed that Complainant had previously, and successfully, utilized the EEO complaint process. Complainant appealed the Agency's decision to the Commission.
On appeal, Complainant argues that he was simultaneously involved in another EEOC proceeding and had both lawyer and scheduling difficulties which hindered his ability to contact an EEO counselor in a timely matter. He argues that this prior case involvement led to his eventual removal in this matter.
Legal Analysis:
the Commission.
On appeal, Complainant argues that he was simultaneously involved in another EEOC proceeding and had both lawyer and scheduling difficulties which hindered his ability to contact an EEO counselor in a timely matter. He argues that this prior case involvement led to his eventual removal in this matter.
ANALYSIS AND FINDINGS
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. 29 C.F.R. § 1614.105(a)(1).
An Agency or the Commission may extend the 45-day limit when an individual is not notified of the time limits, was not otherwise aware of them, should not have reasonably known that the discriminatory matter or personnel action occurred, was prevented by circumstances beyond his control from contacting the counselor within the time limits, despite due diligence, or for other reasons the agency or the Commission considers sufficient. 29 C.F.R. § 1614.105(a)(2); King v. Dep't of Veteran Affairs, EEOC Request No. 0520120116 (May 30, 2012).
In this case, Complainant was effectively terminated on December 13, 2013. However, the record reveals that Complainant did not initiate contact with an EEO Counselor until, February 3, 2014, 7 days beyond the 45-day limitation period.
We find that Complainant did not present any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Complainant states that during the month of December, 2013, he was involved in another ongoing EEO investigation and proceeded to have difficulty with retaining counsel and completing that investigation during the months that followed. However, involvement in another complaint does not constitute a sufficient basis for extending the EEO time limitation period. Complainant did not assert that he was unaware of the EEO Complaint process, or the necessity for contacting an Agency EEO Counselor within 45-days of the alleged discriminatory event. Additionally, Complainant did not dispute the date of the alleged incident. Therefore, we find the Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
Final Decision:
Accordingly, the Agency's final decision to dismiss the formal complaint for the reasons discussed herein is AFFIRMED. | Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142339
Agency No. 4K300009514
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 3, 2014, 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.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Postal Support Employee; specifically, a City Carrier Assistant, at the Agency's Gainesville Carrier Annex facility, in Gainesville, Georgia. On September 18, 2013, Complainant requested annual leave because he had to take a Project Management Professional (PMP) exam that the Agency was previously notified about. Complainant alleged that his request for annual leave was denied without appropriate notice on October 15, 2013. Complainant stated that the Agency deliberately waited until the week before to deny his leave request. The Agency charged Complainant with Absence Without Leave (AWOL) from October 21, 2013 through November 2, 2013, even though he stated that he only took leave from October 21-26, 2013 and was told not to come in the following week. As a result, he was issued a notice of removal, effective December 13, 2013.
On February 3, 2014, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful and he received a Notice of Right to File an Individual Complaint of Discrimination on May 8, 2014. On May 13, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination, on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when Supervisor, Distribution Operations issued a Notice of Removal dated November 13, 2013, with an effective date of December 13, 2013.
The Agency dismissed the complaint on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant's claim was untimely because he contacted the EEO counselor 7 days after the 45 day deadline for initial contact. The Agency also determined that Complainant provided no evidence that he was unaware of the time limit for contacting an EEO Counselor or was prevented from contacting an EEO Counselor due to obstacles beyond his control. Additionally, the Agency found that an EEO poster was appropriately displayed at Complainant's facility and the record showed that Complainant had previously, and successfully, utilized the EEO complaint process. Complainant appealed the Agency's decision to the Commission.
On appeal, Complainant argues that he was simultaneously involved in another EEOC proceeding and had both lawyer and scheduling difficulties which hindered his ability to contact an EEO counselor in a timely matter. He argues that this prior case involvement led to his eventual removal in this matter.
ANALYSIS AND FINDINGS
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. 29 C.F.R. § 1614.105(a)(1).
An Agency or the Commission may extend the 45-day limit when an individual is not notified of the time limits, was not otherwise aware of them, should not have reasonably known that the discriminatory matter or personnel action occurred, was prevented by circumstances beyond his control from contacting the counselor within the time limits, despite due diligence, or for other reasons the agency or the Commission considers sufficient. 29 C.F.R. § 1614.105(a)(2); King v. Dep't of Veteran Affairs, EEOC Request No. 0520120116 (May 30, 2012).
In this case, Complainant was effectively terminated on December 13, 2013. However, the record reveals that Complainant did not initiate contact with an EEO Counselor until, February 3, 2014, 7 days beyond the 45-day limitation period.
We find that Complainant did not present any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Complainant states that during the month of December, 2013, he was involved in another ongoing EEO investigation and proceeded to have difficulty with retaining counsel and completing that investigation during the months that followed. However, involvement in another complaint does not constitute a sufficient basis for extending the EEO time limitation period. Complainant did not assert that he was unaware of the EEO Complaint process, or the necessity for contacting an Agency EEO Counselor within 45-days of the alleged discriminatory event. Additionally, Complainant did not dispute the date of the alleged incident. Therefore, we find the Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision to dismiss the formal complaint for the reasons discussed herein 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
___9/23/14_______________
Date
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438 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140156.r.txt | 0120140156.r.txt | TXT | text/plain | 8,826 | September 24, 2013 | Appeal Number: 0120140156
Background:
During the period at issue, Complainant worked as an Elementary School Teacher at the Agency's Kayenta Community School in Kayneta, Arizona.
On June 14, 2013, Complainant filed a formal EEO complaint alleging the Agency subjected her to discrimination on the basis of age when her contract with the Kayenta Community School was not renewed effective May 22, 2012.
It is undisputed that Complainant initially requested EEO counseling on this matter on June 14, 2012. On June 25, 2012, the EEO Counselor sent Complainant "Pre-Complaint Counseling Forms" to complete and return within 14 calendar days of receipt of the package. Complainant acknowledged receipt of the package on June 29, 2012.
The record also contains a copy of a July 20, 2012 email from Complainant's attorney's to the EEO Counselor. Therein, the attorney stated "I have realized this afternoon that [Complainant] asked me to turn in her paperwork, which is probably now late. I can't reach her right now to get some of the information that I need for the paperwork. Can I get this to you Monday, or is her case going to be dismissed because we didn't get the paperwork right back to you?" In response, the EEO Counselor attempted to contact the attorney by telephone. However, the EEO Counselor received no return telephone call, the counseling forms or any other communication from the attorney or Complainant.
On May 2, 2013, the attorney submitted the "Pre-Complaint Forms" to the EEO Counselor. A review of the forms revealed that Complainant signed the forms on July 11, 2012, but no explanation for the delay was provided.
In its September 24, 2013 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact, The Agency determined that the alleged discriminatory event occurred on May 22, 2012, but Complainant did not initiate EEO contact until May 2, 2013, which it found to be beyond the 45-day limitation period.
The instant appeal followed. Complainant argues that her initial EEO contact was timely.
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 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.
It is undisputed that the alleged discriminatory event occurred on May 22, 2012, and Complainant initiated contact with an EEO Counselor on June 14, 2012. Therefore, the Agency erred in dismissing the complaint for untimely initial EEO counselor contact.
However, the issue to be decided is whether or not, after initiating the June 2012 contact, Complainant abandoned her claim and then tried to revive it in May 2013. It is clear that the EEO Counselor sent Complainant a number of forms to be completed, which she received on June 29, 2012. Complainant was advised in writing that she had 14 days to return the forms or no further action would be taken on her claims. After a July 20 email message from her attorney to the EEO Counselor indicating the forms might be delayed, the EEO Counselor had no further communication from the attorney or Complainant for almost a year, until the forms were finally submitted in May 2013. To date, no explanation has been provided by Complainant for the lengthy delay. Under these facts, we find that Complainant abandoned her claim during her initial counseling, and she was not entitled to revive the claim by seeking counseling again on the same matter a year later. Cf. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995) (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).
The Agency's final decision dismissing Complainant's formal complaint is AFFIRMED, albeit for different reasons. | Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120140156
Agency No. DOI-BIA-13-0286
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 24, 2013, 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 an Elementary School Teacher at the Agency's Kayenta Community School in Kayneta, Arizona.
On June 14, 2013, Complainant filed a formal EEO complaint alleging the Agency subjected her to discrimination on the basis of age when her contract with the Kayenta Community School was not renewed effective May 22, 2012.
It is undisputed that Complainant initially requested EEO counseling on this matter on June 14, 2012. On June 25, 2012, the EEO Counselor sent Complainant "Pre-Complaint Counseling Forms" to complete and return within 14 calendar days of receipt of the package. Complainant acknowledged receipt of the package on June 29, 2012.
The record also contains a copy of a July 20, 2012 email from Complainant's attorney's to the EEO Counselor. Therein, the attorney stated "I have realized this afternoon that [Complainant] asked me to turn in her paperwork, which is probably now late. I can't reach her right now to get some of the information that I need for the paperwork. Can I get this to you Monday, or is her case going to be dismissed because we didn't get the paperwork right back to you?" In response, the EEO Counselor attempted to contact the attorney by telephone. However, the EEO Counselor received no return telephone call, the counseling forms or any other communication from the attorney or Complainant.
On May 2, 2013, the attorney submitted the "Pre-Complaint Forms" to the EEO Counselor. A review of the forms revealed that Complainant signed the forms on July 11, 2012, but no explanation for the delay was provided.
In its September 24, 2013 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact, The Agency determined that the alleged discriminatory event occurred on May 22, 2012, but Complainant did not initiate EEO contact until May 2, 2013, which it found to be beyond the 45-day limitation period.
The instant appeal followed. Complainant argues that her initial EEO contact was timely.
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 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.
It is undisputed that the alleged discriminatory event occurred on May 22, 2012, and Complainant initiated contact with an EEO Counselor on June 14, 2012. Therefore, the Agency erred in dismissing the complaint for untimely initial EEO counselor contact.
However, the issue to be decided is whether or not, after initiating the June 2012 contact, Complainant abandoned her claim and then tried to revive it in May 2013. It is clear that the EEO Counselor sent Complainant a number of forms to be completed, which she received on June 29, 2012. Complainant was advised in writing that she had 14 days to return the forms or no further action would be taken on her claims. After a July 20 email message from her attorney to the EEO Counselor indicating the forms might be delayed, the EEO Counselor had no further communication from the attorney or Complainant for almost a year, until the forms were finally submitted in May 2013. To date, no explanation has been provided by Complainant for the lengthy delay. Under these facts, we find that Complainant abandoned her claim during her initial counseling, and she was not entitled to revive the claim by seeking counseling again on the same matter a year later. Cf. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995) (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).
The Agency's final decision dismissing Complainant's formal complaint is AFFIRMED, albeit for different reasons.
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 (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 12, 2014
__________________
Date
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439 | https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2020004981.pdf | 2020004981.pdf | PDF | application/pdf | 9,589 | Bert P .,1 Complainant, v. John E. Whitley , Acting Secretary , Department of the Army, Agency. | February 22, 2019 | Appeal Number: 2020004981
Background:
At the time of events giving rise to this complaint, Complainant worked as a Recreation Assistant at the Agency’s Pineview Campground in Fort McCoy, Wisconsin. On February 21, 2019, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity (2017 and 2018 EEO complaint s) when , on January 9, 2019, EEO
management rendered assistance and protection in favor of a responsible management official
(RMO) by ordering an EEO Counselor to remove a retaliatory comment by RMO from the EEO
Counselor’s R eport for a complaint docketed as Agency No. ARUSAR18SEP03744 (03744).
Complainant alleged, during the final interview for Agency No. 03744, the Counselor’s Report
indicated that RMO stated that he d isliked the EEO process and that complainants should have to
pay to file an EEO complaint and get reimbursed only if they prevail . In a January 17, 2019
1 This case has been randomly assigned a pseudonym which will replace Complainant’s na me
when the decision is published to non-parties and the Commission’s website.
2 2020004981
email to Complainant, the assigned EEO Counselor stated , “During the [senior] review phase, I
was asked to take a comment out as it did not pertain to resolving the com plaint. I did that and
printed a new [report] .”
In a final deci sion dated February 22, 2019, the Agency dismissed Complainant’s claim pursuant
to 29 C.F.R. §§ 1614.107(a)(1) and (a)(8). The Agency stated that the instant complaint alleges
dissatisfaction with the EEO process and is a spinoff of Agency No. 03744. The Agency stated, at Complainant’s request, it amended Agency No. 03744 to include the allegation of improper EEO processing here.
Legal Analysis:
the Commission’s website.
2 2020004981
email to Complainant, the assigned EEO Counselor stated , “During the [senior] review phase, I
was asked to take a comment out as it did not pertain to resolving the com plaint. I did that and
printed a new [report] .”
In a final deci sion dated February 22, 2019, the Agency dismissed Complainant’s claim pursuant
to 29 C.F.R. §§ 1614.107(a)(1) and (a)(8). The Agency stated that the instant complaint alleges
dissatisfaction with the EEO process and is a spinoff of Agency No. 03744. The Agency stated, at Complainant’s request, it amended Agency No. 03744 to include the allegation of improper EEO processing here.
ANALYSIS AND FINDINGS
In pertinent part, EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency shall
dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Further, 29 C.F.R. § 1614.107(a)( 8) provides that an agency shall
dismiss a complaint that alleges dissatisfaction with the processing of a previously -filed
complaint.
Here, we agree with the Agency’s dismissal of the instant complaint. Complainant alleged that
EEO management acted improperly when it removed RMO’s comments ( expressing dislike for
the EEO process and that complainants should have to pay to file complaints and get reimbursed only if successful ) from the initial counseling report for Agency No. 03744. The Agenc y stated
that it removed the comments because they did not pertain to resolution of 03744. We find
Complainant’s claim is one of dissatisfaction with EEO processing. Further, the record shows
that the Agency amended 03744 to include a claim regarding RMO’s comments and the Agency
issued a final decision finding per se reprisal on that matter . Our records show that matter is on
appeal before the Commission under EEOC Appeal No. 20200003846. Hence , both EEOC
Regulation 29 C.F.R. §§ 1614.107(a)(1) and (a)(8) a pply here. | Bert P .,1
Complainant,
v.
John E. Whitley ,
Acting Secretary ,
Department of the Army,
Agency.
Appeal No. 2020004981
Agency No. ARFORSCOM19FEB00290
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated February 22, 2019, 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 Recreation Assistant at the Agency’s Pineview Campground in Fort McCoy, Wisconsin. On February 21, 2019, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity (2017 and 2018 EEO complaint s) when , on January 9, 2019, EEO
management rendered assistance and protection in favor of a responsible management official
(RMO) by ordering an EEO Counselor to remove a retaliatory comment by RMO from the EEO
Counselor’s R eport for a complaint docketed as Agency No. ARUSAR18SEP03744 (03744).
Complainant alleged, during the final interview for Agency No. 03744, the Counselor’s Report
indicated that RMO stated that he d isliked the EEO process and that complainants should have to
pay to file an EEO complaint and get reimbursed only if they prevail . In a January 17, 2019
1 This case has been randomly assigned a pseudonym which will replace Complainant’s na me
when the decision is published to non-parties and the Commission’s website.
2 2020004981
email to Complainant, the assigned EEO Counselor stated , “During the [senior] review phase, I
was asked to take a comment out as it did not pertain to resolving the com plaint. I did that and
printed a new [report] .”
In a final deci sion dated February 22, 2019, the Agency dismissed Complainant’s claim pursuant
to 29 C.F.R. §§ 1614.107(a)(1) and (a)(8). The Agency stated that the instant complaint alleges
dissatisfaction with the EEO process and is a spinoff of Agency No. 03744. The Agency stated, at Complainant’s request, it amended Agency No. 03744 to include the allegation of improper EEO processing here.
ANALYSIS AND FINDINGS
In pertinent part, EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency shall
dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Further, 29 C.F.R. § 1614.107(a)( 8) provides that an agency shall
dismiss a complaint that alleges dissatisfaction with the processing of a previously -filed
complaint.
Here, we agree with the Agency’s dismissal of the instant complaint. Complainant alleged that
EEO management acted improperly when it removed RMO’s comments ( expressing dislike for
the EEO process and that complainants should have to pay to file complaints and get reimbursed only if successful ) from the initial counseling report for Agency No. 03744. The Agenc y stated
that it removed the comments because they did not pertain to resolution of 03744. We find
Complainant’s claim is one of dissatisfaction with EEO processing. Further, the record shows
that the Agency amended 03744 to include a claim regarding RMO’s comments and the Agency
issued a final decision finding per se reprisal on that matter . Our records show that matter is on
appeal before the Commission under EEOC Appeal No. 20200003846. Hence , both EEOC
Regulation 29 C.F.R. §§ 1614.107(a)(1) and (a)(8) a pply here.
CONCLUSION
After careful review of the record, we AFFIRM the final agency decision dismissing the instant complaint.
2 The record shows that the Agency amended 03744 to include an allegation that, on October 20,
2018, Complainant saw an annotation of RMO’s comments about dislike for the EEO pr ocess in
a draft C ounselor’s Report . The Agency issued a final decision , dated August 4, 2020, for 03744
finding a per se reprisal violatio n related to the comments and ordering remedial relief. The
EEOC database shows that Complainant filed an appeal , whi ch was docketed as EEOC Appeal
No. 20200003846, related to Agency No. 03744. That matter is actively being pr ocessed and will
be addressed in a separate decision.
3 2020004981
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellat e 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 decisi on 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 part y requesting
reconsideration elects to file a statement or brief in support of the request, that statement or
brief must be filed to gether with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s r equest 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 Por tal, which can be found at
https://publicportal.eeoc.gov/Port al/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operation s, Equal Employment Opportunity Commission, via regular mail addressed
to P.O. Box 77960, Washington, DC 20013, or by certifi ed 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 pe riod. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Feder al 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 par ty’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submi tted 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).
4 2020004981
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 with in
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 ful l 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 reconsid er 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 t o file a civil action but cannot pay the fees, costs, or security to do so, you may
reques t 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 c ivil 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 (p lease read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlto n M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
February 25, 2021
Date | [
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440 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120172095.txt | 0120172095.txt | TXT | text/plain | 9,911 | Maya F,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. | May 24, 2017 | Appeal Number: 0120172095
Background:
At the time of events giving rise to this complaint, Complainant is a former employee at the Agency's Louis Stokes Medical Center facility in Cleveland, Ohio.
On March 8, 2017, Complainant contacted the Agency's EEO Office. Subsequently, when the matter could not be resolved informally, on April 21, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: Complainant was subjected to harassment and denial of reasonable accommodation culminating in her resignation in August 2015.
The Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2) for failure to raise the matter in a timely manner to the EEO Counselor. The Agency noted that Complainant alleged discrimination involving events in July 2015 which she alleged led to her constructive discharge. The Agency also noted that Complainant asserted that events occurred in 2016. However, none of these events were within 45 calendar days of her contact with the EEO Counselor. Therefore, the Agency dismissed the complaint as a whole.
CONTENTIONS ON APPEAL
Complainant, through her attorney (the Attorney), alleged that the events that led to her resignation were not the only events. Complainant indicated that she sought medical treatment at the same hospital and would run into her former coworkers who continued to harass her. In support of the Attorney's assertions, he provided copies of letters dated February 9, 2016 and August 19, 2016, to the Medical Center Director informing her of the continued harassment Complainant received as a patient of the facility. Complainant also asserted that she sought help from the Reasonable Accommodation Coordinator which the Attorney argued should be considered, in essence part of the EEO process. As such, she asked that the Commission reverse the Agency's final decision and remand the matter for an investigation. The Agency asked that the Commission affirm its decision dismissing the complaint as a whole.
Legal Analysis:
the Commission reverse the Agency's final decision and remand the matter for an investigation. The Agency asked that the Commission affirm its decision dismissing the complaint as a whole.
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.
Upon review of the record, we find that the dismissal was appropriate. Complainant contacted the EEO Counselor in March 2017, alleging harassment that resulted in her resignation in August 2015. We note that the Attorney argued that additional events occurred after her resignation in August 2016. Assuming these claims are properly raised in the EEO compliant, Complainant's contact of the EEO Counselor in March 2017, was still well beyond the 45 day time limit. Further, to the extent Complainant asserted to the EEO Counselor that she was not aware of the time frames, we find that Complainant should have known about the EEO complaint process and the 45 day time limit. The Agency provided evidence that Complainant had received training and provided copies of the information given during the training including the EEO complaint time frame and EEO complaint process. Finally, we are not persuaded by the Attorney's assertion that Complainant reached out to the Reasonable Accommodation Coordinator to pursue an EEO complaint regarding her claim of harassment. We find that Complainant did email the Reasonable Accommodation Coordinator and expressed her concerns about the hostile workplace. However, she sought his assistance in obtaining a reasonable accommodation by removing herself from the stressful environment. As such, we conclude that Complainant has not shown that the time period should be extended. | Maya F,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172095
Agency No. 200H05412017102124
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 24, 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. 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 is a former employee at the Agency's Louis Stokes Medical Center facility in Cleveland, Ohio.
On March 8, 2017, Complainant contacted the Agency's EEO Office. Subsequently, when the matter could not be resolved informally, on April 21, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: Complainant was subjected to harassment and denial of reasonable accommodation culminating in her resignation in August 2015.
The Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2) for failure to raise the matter in a timely manner to the EEO Counselor. The Agency noted that Complainant alleged discrimination involving events in July 2015 which she alleged led to her constructive discharge. The Agency also noted that Complainant asserted that events occurred in 2016. However, none of these events were within 45 calendar days of her contact with the EEO Counselor. Therefore, the Agency dismissed the complaint as a whole.
CONTENTIONS ON APPEAL
Complainant, through her attorney (the Attorney), alleged that the events that led to her resignation were not the only events. Complainant indicated that she sought medical treatment at the same hospital and would run into her former coworkers who continued to harass her. In support of the Attorney's assertions, he provided copies of letters dated February 9, 2016 and August 19, 2016, to the Medical Center Director informing her of the continued harassment Complainant received as a patient of the facility. Complainant also asserted that she sought help from the Reasonable Accommodation Coordinator which the Attorney argued should be considered, in essence part of the EEO process. As such, she asked that the Commission reverse the Agency's final decision and remand the matter for an investigation. The Agency asked that the Commission affirm its decision dismissing the complaint as a whole.
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.
Upon review of the record, we find that the dismissal was appropriate. Complainant contacted the EEO Counselor in March 2017, alleging harassment that resulted in her resignation in August 2015. We note that the Attorney argued that additional events occurred after her resignation in August 2016. Assuming these claims are properly raised in the EEO compliant, Complainant's contact of the EEO Counselor in March 2017, was still well beyond the 45 day time limit. Further, to the extent Complainant asserted to the EEO Counselor that she was not aware of the time frames, we find that Complainant should have known about the EEO complaint process and the 45 day time limit. The Agency provided evidence that Complainant had received training and provided copies of the information given during the training including the EEO complaint time frame and EEO complaint process. Finally, we are not persuaded by the Attorney's assertion that Complainant reached out to the Reasonable Accommodation Coordinator to pursue an EEO complaint regarding her claim of harassment. We find that Complainant did email the Reasonable Accommodation Coordinator and expressed her concerns about the hostile workplace. However, she sought his assistance in obtaining a reasonable accommodation by removing herself from the stressful environment. As such, we conclude that Complainant has not shown that the time period should be extended.
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
August 29, 2017
__________________
Date
------------------------------------------------------------
------------------------------------------------------------
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441 | https://www.eeoc.gov/sites/default/files/decisions/2024_02_05/2023003361.pdf | 2023003361.pdf | PDF | application/pdf | 9,162 | Sylvester D .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. | May 8, 2023 | Appeal Number: 2023003361
Background:
In April 2022, Complainant received an appointment to a P ostal Support Employee - Mail
Processing Clerk position at the Agency’s Wheat Ridge Post Office in Wheat Ridge, Colorado.
On January 27, 2023, Complainant initiated contact with th e Agency E qual Employment
Opportunity (EEO) Office alleging that the Agency subjected him to discrimination on the bases
of race (African -American) and disability (none specified) when , on June 23, 2022, it issued him
a Notice of Separation , during his probationary period.
2 Complainant subsequently filed a formal
complaint reiterating his claim.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 The record contains a Notice of Personnel Action listing the effective date and processing date
of Complainant’s separation as September 6, 2022, and his last day- in-pay status as June 23,
2022.
In its May 8, 2023 final decision, the Agency dismissed Complainant’s complaint pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that
Complainant initiated EEO contact seven months after his removal and was outside of the 45-day
statutory timeframe. The Agency stated that Complainant had constructive knowledge of the
timeframe because he was previously informed of the proper manner to initiate EEO contact for
a prior complaint, he has prior EEO activity, and there are EEO posters posted at the facility.
The record contains a list of approximately 14 formal complaints for Complainant, dated
between August 2014 and July 2015, and an affidavit from the Wheat Ridge Customer Service Supervisor stating that EEO Poster 72 is displayed by the facility employee bulletin board, time
clock, and front lobby. The Agency stated that Complainant was aware of the statutory
timeframe and was not prevented by circumstances beyond his control in initiating EEO contact.
The instant appeal from Complainant followed. O n appeal, Complainant stated that he initiated
EEO contact in a timely manner because he could not locate a proper EEO Counselor , even with
due diligence. He stated that he was on medical leave.
Legal Analysis:
the Commission’s website.
2 The record contains a Notice of Personnel Action listing the effective date and processing date
of Complainant’s separation as September 6, 2022, and his last day- in-pay status as June 23,
2022.
In its May 8, 2023 final decision, the Agency dismissed Complainant’s complaint pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that
Complainant initiated EEO contact seven months after his removal and was outside of the 45-day
statutory timeframe. The Agency stated that Complainant had constructive knowledge of the
timeframe because he was previously informed of the proper manner to initiate EEO contact for
a prior complaint, he has prior EEO activity, and there are EEO posters posted at the facility.
The record contains a list of approximately 14 formal complaints for Complainant, dated
between August 2014 and July 2015, and an affidavit from the Wheat Ridge Customer Service Supervisor stating that EEO Poster 72 is displayed by the facility employee bulletin board, time
clock, and front lobby. The Agency stated that Complainant was aware of the statutory
timeframe and was not prevented by circumstances beyond his control in initiating EEO contact.
The instant appeal from Complainant followed. O n appeal, Complainant stated that he initiated
EEO contact in a timely manner because he could not locate a proper EEO Counselor , even with
due diligence. He stated that he was on medical leave.
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 effect ive
date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of
complaints where the complainant did not initiate contact with an EEO Counselor within the
statutory timeframe. 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 (February 11, 1999).
We agree with the Agency that Complainant had knowledge of the statutory timeframe and
initiated EEO contact in an untimely manner. The Agency informed Complainant of his removal
in a Notice of Separation dated June 23, 2022, and pursuant to a personnel action, removed him
from employment effective September 6, 2022. Complainant initiated EEO contact regarding his
removal on January 27, 2023, which is well beyond the forty -five (45) day limitation period for a
June 23, 2022 or September 6, 2022 effective date of removal . On appeal, Complainant has
presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. | Sylvester D .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2023003361
Agency No. 4E-800-0055-23
DECISION
Complainant filed a n appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated May 8, 2023, dismissing his compla int 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
In April 2022, Complainant received an appointment to a P ostal Support Employee - Mail
Processing Clerk position at the Agency’s Wheat Ridge Post Office in Wheat Ridge, Colorado.
On January 27, 2023, Complainant initiated contact with th e Agency E qual Employment
Opportunity (EEO) Office alleging that the Agency subjected him to discrimination on the bases
of race (African -American) and disability (none specified) when , on June 23, 2022, it issued him
a Notice of Separation , during his probationary period.
2 Complainant subsequently filed a formal
complaint reiterating his claim.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 The record contains a Notice of Personnel Action listing the effective date and processing date
of Complainant’s separation as September 6, 2022, and his last day- in-pay status as June 23,
2022.
In its May 8, 2023 final decision, the Agency dismissed Complainant’s complaint pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that
Complainant initiated EEO contact seven months after his removal and was outside of the 45-day
statutory timeframe. The Agency stated that Complainant had constructive knowledge of the
timeframe because he was previously informed of the proper manner to initiate EEO contact for
a prior complaint, he has prior EEO activity, and there are EEO posters posted at the facility.
The record contains a list of approximately 14 formal complaints for Complainant, dated
between August 2014 and July 2015, and an affidavit from the Wheat Ridge Customer Service Supervisor stating that EEO Poster 72 is displayed by the facility employee bulletin board, time
clock, and front lobby. The Agency stated that Complainant was aware of the statutory
timeframe and was not prevented by circumstances beyond his control in initiating EEO contact.
The instant appeal from Complainant followed. O n appeal, Complainant stated that he initiated
EEO contact in a timely manner because he could not locate a proper EEO Counselor , even with
due diligence. He stated that he was on medical leave.
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 effect ive
date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of
complaints where the complainant did not initiate contact with an EEO Counselor within the
statutory timeframe. 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 (February 11, 1999).
We agree with the Agency that Complainant had knowledge of the statutory timeframe and
initiated EEO contact in an untimely manner. The Agency informed Complainant of his removal
in a Notice of Separation dated June 23, 2022, and pursuant to a personnel action, removed him
from employment effective September 6, 2022. Complainant initiated EEO contact regarding his
removal on January 27, 2023, which is well beyond the forty -five (45) day limitation period for a
June 23, 2022 or September 6, 2022 effective date of removal . 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 dismissing Complainant's complaint is a ffirmed.
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 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, vi a the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
Failu
re 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 togethe r 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 r ight 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 civ il 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 23, 2023
Date | [
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442 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019003004.pdf | 2019003004.pdf | PDF | application/pdf | 10,281 | Salvatore K .,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. | April 2, 2019 | Appeal Number: 2019003004
Legal Analysis:
the Commission’s website.
2 2019003004
The Agency determined that the claims in the formal complaint were not actually brought to the
attention of an EE O Counselor and were not like or related to matters for which Complainant
sought EEO counseling.2
Complainant filed the instant appeal on April 24, 2019. However, during the pendency of this appeal, the record indicates that, by letter dated June 5, 2019,
the Agency informed Complainant’s representative that Complainant was being referred to EEO counseling. In a footnote to the June 5, 2019 letter, the Agency indicated that the June 5 letter
“supersedes and rescinds the April 3, 2019 Final Agency Decision [emphasis added ].” Thus, it
appears that the Agency has rescinded its April 3, 2019 dismissal, and is again providing
Complainant an additional opportunity to pursue EEO counseling.
Given the Agency’s rescission of the Agency’s final decision that is the subject matter of the instant
appeal , we REMAND this matter to the Agency for further processing in accordance with the
ORDER below.
ORDER
To the extent that the Agency has not yet done so, t he Agency shall provide Complainant EEO
counseling . Within thirty (30) calendar days of the date this decision was issued, the Agency
shall notify Complainant of his right to EEO counseling. EEO counseling shall not exceed thirty (30) calendar days after the Agency notifies Complainant of his right to E EO Counseling, unless
Complainant and the Agency agree in writing to extend EEO counseling for an additional period of no more than sixty (60) days .
The Agency shall send a copy of its notice of Complainant’s right to EEO counseling and a copy of its notice of Complainant's right to file a formal complaint to EEOC's Compliance Officer listed 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 man datory. 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 complianc e 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.
2 The Agency further advised Complainant that if he still wanted to pursue the matters first brought
to the attention of an EEO Counselor in December 2018, he should contact a named EEO Counselor. The Agency concluded by indicated that any issue brought to the attention of an EEO Counselor within 45 calendar days prior to December 17, 2018, would be considered timely counseled.
3 2019003004
See 29 C.F.R. § 1614.403(g). The Agency’s final r eport must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to
Complainant and his representative.
If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a).
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, 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 Complainant files a civil action, the administrative processing of the complaint, includi ng any petition for enforcement, will be terminated . See 29 C.F.R.
§ 1614.409. | Salvatore K .,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 2019003004
Agency No. OCFO-2019-00422
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 2, 2019, dismissing a formal complaint
of unlawful employment discrimination in violation of Title VII of the Civ il Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq., and of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the period at issue, Complainant worked as a Computer Assistant (Customer Support), GS -
7, at the Agency’s Information Technology Service Division in New Orleans, Louisiana. The record reflects that on December 17, 2018, Complainant initiated EEO Counselor contact concerning a 2018 Performance Evaluation, and alleged discriminatory comments made against him. On March 6, 2019, the Agency issued Complainant a Notice of Right to File a Formal Complaint (NOFI) . On March 21, 2019, Complainant’s representative filed the instant formal complaint , via
fax transmission , on Complainant’s behalf.
On April 3, 2019, the Agency issued the instant final decision dismissing the complaint pursuant
to 29 C.F.R. §1614.107(a)(2).
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 2019003004
The Agency determined that the claims in the formal complaint were not actually brought to the
attention of an EE O Counselor and were not like or related to matters for which Complainant
sought EEO counseling.2
Complainant filed the instant appeal on April 24, 2019. However, during the pendency of this appeal, the record indicates that, by letter dated June 5, 2019,
the Agency informed Complainant’s representative that Complainant was being referred to EEO counseling. In a footnote to the June 5, 2019 letter, the Agency indicated that the June 5 letter
“supersedes and rescinds the April 3, 2019 Final Agency Decision [emphasis added ].” Thus, it
appears that the Agency has rescinded its April 3, 2019 dismissal, and is again providing
Complainant an additional opportunity to pursue EEO counseling.
Given the Agency’s rescission of the Agency’s final decision that is the subject matter of the instant
appeal , we REMAND this matter to the Agency for further processing in accordance with the
ORDER below.
ORDER
To the extent that the Agency has not yet done so, t he Agency shall provide Complainant EEO
counseling . Within thirty (30) calendar days of the date this decision was issued, the Agency
shall notify Complainant of his right to EEO counseling. EEO counseling shall not exceed thirty (30) calendar days after the Agency notifies Complainant of his right to E EO Counseling, unless
Complainant and the Agency agree in writing to extend EEO counseling for an additional period of no more than sixty (60) days .
The Agency shall send a copy of its notice of Complainant’s right to EEO counseling and a copy of its notice of Complainant's right to file a formal complaint to EEOC's Compliance Officer listed 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 man datory. 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 complianc e 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.
2 The Agency further advised Complainant that if he still wanted to pursue the matters first brought
to the attention of an EEO Counselor in December 2018, he should contact a named EEO Counselor. The Agency concluded by indicated that any issue brought to the attention of an EEO Counselor within 45 calendar days prior to December 17, 2018, would be considered timely counseled.
3 2019003004
See 29 C.F.R. § 1614.403(g). The Agency’s final r eport must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to
Complainant and his representative.
If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a).
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, 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 Complainant files a civil action, the administrative processing of the complaint, includi ng 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 Complainant or the Agency submits a writ ten 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 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.
4 2019003004
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 i ts 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
decisio n. 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 27, 2019
Date | [
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443 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020003447.pdf | 2020003447.pdf | PDF | application/pdf | 9,678 | Delphia F .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. | April 13, 2020 | Appeal Number: 2020003447
Background:
During the period at issue, Complainant worked as a City Carrier Assistant (Holiday Term) at the Agency’s Bellaire Post Office in Bellaire, Texas. On December 3, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On March 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex, disability, age, and in reprisal for prior protected EEO
activity when:
1. on December 12, 2017, Complainant was injured while at work and was not
offered light and/or limited duty work; and
2. on December 29, 2017, Complainant was terminated from her postal service position.
On April 13, 2020, 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 initial EEO Counselor contact was on December 3, 2019, which it found to be well beyond the
45-day limitation period.
The instant appeal followed. On appeal, Complainant argues she “was not aware of the time limit for contacting an EEOC Counselor” and “ did not recall seeing anything posted on the wall explaining the EEOC
procedure.” After her term ination, Complainant explains that she received a package from the
Agency and she “assumed that [her] employment was being reconsidered.” Complainant further
indicates that “the thought to file with the EEOC never crossed [her] mind, at the time,” and that
for over several months she was in consistent contact with six different employees for assistance.
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.
EEOC Regulations provide that the Agency or the Commission may extend the time limits when
the individual shows that s/ he was not notified of the time limits and was not otherwise aware of
them, that s/ he did not know and reasonably should not have known t hat the discriminatory
matter or personnel action occurred, that despite due di ligence s/he was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2). The record indicates that the last discriminatory event occurred on December 29, 2017, but that Complainant did not initiate EEO Counselor contact with an EEO Counselor until December 3, 2019, almost two years beyond the 45- day limitation period. On appeal, C omplainant has
presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted on appeal that she did not
remember seeing any poster explaining the EEO complaint procedure and she was otherwise unaware of the time limit for contacting an EEO Counselor, the Agency provides evidence to the contrary. Complainant’s Postmaster’s sworn affidavit indicates that an EEO poste r had been
posted at the facility since September 2008.
Additionally, a copy of this poster is included in the record and states, in pertinent part, that
individual and class action complaints must be brought to the attention of the EEO office within 45 calendar days of the date of the alleged discriminatory act. Complainant, however, waited almost two years to initiate EEO Counselor contact.
We note, moreover, that the Commission has consistently held that a complainant must act with
due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v.
United States Postal Service , EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the
doctri ne of laches applied when complainant waited over two years from the date of the alleged
discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and
Human Service, EEOC Request No. 05901130 (Dec . 27, 1990). The doctrine of laches is an
equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Because Complainant did not act with reasonable diligence in contacting an
EEO Counselor, the doctrine of laches requires dism issal.
Final Decision:
Accordingly, the A gency's decision to dismiss C omplainant's complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. | Delphia F .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020003447
Agency No. 4G-770-0049-20
DECISION
Complainant f iled a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated April 13, 2020, dismissing a formal complaint
of unlawful employment discrimination in violation of Title VII of the Civil Rights Ac t of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier Assistant (Holiday Term) at the Agency’s Bellaire Post Office in Bellaire, Texas. On December 3, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On March 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex, disability, age, and in reprisal for prior protected EEO
activity when:
1. on December 12, 2017, Complainant was injured while at work and was not
offered light and/or limited duty work; and
2. on December 29, 2017, Complainant was terminated from her postal service position.
On April 13, 2020, 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 initial EEO Counselor contact was on December 3, 2019, which it found to be well beyond the
45-day limitation period.
The instant appeal followed. On appeal, Complainant argues she “was not aware of the time limit for contacting an EEOC Counselor” and “ did not recall seeing anything posted on the wall explaining the EEOC
procedure.” After her term ination, Complainant explains that she received a package from the
Agency and she “assumed that [her] employment was being reconsidered.” Complainant further
indicates that “the thought to file with the EEOC never crossed [her] mind, at the time,” and that
for over several months she was in consistent contact with six different employees for assistance.
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.
EEOC Regulations provide that the Agency or the Commission may extend the time limits when
the individual shows that s/ he was not notified of the time limits and was not otherwise aware of
them, that s/ he did not know and reasonably should not have known t hat the discriminatory
matter or personnel action occurred, that despite due di ligence s/he was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2). The record indicates that the last discriminatory event occurred on December 29, 2017, but that Complainant did not initiate EEO Counselor contact with an EEO Counselor until December 3, 2019, almost two years beyond the 45- day limitation period. On appeal, C omplainant has
presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted on appeal that she did not
remember seeing any poster explaining the EEO complaint procedure and she was otherwise unaware of the time limit for contacting an EEO Counselor, the Agency provides evidence to the contrary. Complainant’s Postmaster’s sworn affidavit indicates that an EEO poste r had been
posted at the facility since September 2008.
Additionally, a copy of this poster is included in the record and states, in pertinent part, that
individual and class action complaints must be brought to the attention of the EEO office within 45 calendar days of the date of the alleged discriminatory act. Complainant, however, waited almost two years to initiate EEO Counselor contact.
We note, moreover, that the Commission has consistently held that a complainant must act with
due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v.
United States Postal Service , EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the
doctri ne of laches applied when complainant waited over two years from the date of the alleged
discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and
Human Service, EEOC Request No. 05901130 (Dec . 27, 1990). The doctrine of laches is an
equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Because Complainant did not act with reasonable diligence in contacting an
EEO Counselor, the doctrine of laches requires dism issal.
Accordingly, the A gency's decision to dismiss C omplainant's complaint on the grounds of
untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operation s (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 Commi ssion.
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 i n 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 r equests 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 21, 2020
Date | [
"Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (Dec . 27, 1990)",
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"29 C.F.R. § 1614.105(a)",
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444 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020003447.pdf | 2020003447.pdf | PDF | application/pdf | 9,678 | Delphia F .,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. | April 13, 2020 | Appeal Number: 2020003447
Background:
During the period at issue, Complainant worked as a City Carrier Assistant (Holiday Term) at the Agency’s Bellaire Post Office in Bellaire, Texas. On December 3, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On March 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex, disability, age, and in reprisal for prior protected EEO
activity when:
1. on December 12, 2017, Complainant was injured while at work and was not
offered light and/or limited duty work; and
2. on December 29, 2017, Complainant was terminated from her postal service position.
On April 13, 2020, 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 initial EEO Counselor contact was on December 3, 2019, which it found to be well beyond the
45-day limitation period.
The instant appeal followed. On appeal, Complainant argues she “was not aware of the time limit for contacting an EEOC Counselor” and “ did not recall seeing anything posted on the wall explaining the EEOC
procedure.” After her term ination, Complainant explains that she received a package from the
Agency and she “assumed that [her] employment was being reconsidered.” Complainant further
indicates that “the thought to file with the EEOC never crossed [her] mind, at the time,” and that
for over several months she was in consistent contact with six different employees for assistance.
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.
EEOC Regulations provide that the Agency or the Commission may extend the time limits when
the individual shows that s/ he was not notified of the time limits and was not otherwise aware of
them, that s/ he did not know and reasonably should not have known t hat the discriminatory
matter or personnel action occurred, that despite due di ligence s/he was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2). The record indicates that the last discriminatory event occurred on December 29, 2017, but that Complainant did not initiate EEO Counselor contact with an EEO Counselor until December 3, 2019, almost two years beyond the 45- day limitation period. On appeal, C omplainant has
presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted on appeal that she did not
remember seeing any poster explaining the EEO complaint procedure and she was otherwise unaware of the time limit for contacting an EEO Counselor, the Agency provides evidence to the contrary. Complainant’s Postmaster’s sworn affidavit indicates that an EEO poste r had been
posted at the facility since September 2008.
Additionally, a copy of this poster is included in the record and states, in pertinent part, that
individual and class action complaints must be brought to the attention of the EEO office within 45 calendar days of the date of the alleged discriminatory act. Complainant, however, waited almost two years to initiate EEO Counselor contact.
We note, moreover, that the Commission has consistently held that a complainant must act with
due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v.
United States Postal Service , EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the
doctri ne of laches applied when complainant waited over two years from the date of the alleged
discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and
Human Service, EEOC Request No. 05901130 (Dec . 27, 1990). The doctrine of laches is an
equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Because Complainant did not act with reasonable diligence in contacting an
EEO Counselor, the doctrine of laches requires dism issal.
Final Decision:
Accordingly, the A gency's decision to dismiss C omplainant's complaint on the grounds of untimely EEO Counselor contact is AFFIRMED. | Delphia F .,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020003447
Agency No. 4G-770-0049-20
DECISION
Complainant f iled a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated April 13, 2020, dismissing a formal complaint
of unlawful employment discrimination in violation of Title VII of the Civil Rights Ac t of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier Assistant (Holiday Term) at the Agency’s Bellaire Post Office in Bellaire, Texas. On December 3, 2019, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful. On March 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex, disability, age, and in reprisal for prior protected EEO
activity when:
1. on December 12, 2017, Complainant was injured while at work and was not
offered light and/or limited duty work; and
2. on December 29, 2017, Complainant was terminated from her postal service position.
On April 13, 2020, 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 initial EEO Counselor contact was on December 3, 2019, which it found to be well beyond the
45-day limitation period.
The instant appeal followed. On appeal, Complainant argues she “was not aware of the time limit for contacting an EEOC Counselor” and “ did not recall seeing anything posted on the wall explaining the EEOC
procedure.” After her term ination, Complainant explains that she received a package from the
Agency and she “assumed that [her] employment was being reconsidered.” Complainant further
indicates that “the thought to file with the EEOC never crossed [her] mind, at the time,” and that
for over several months she was in consistent contact with six different employees for assistance.
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.
EEOC Regulations provide that the Agency or the Commission may extend the time limits when
the individual shows that s/ he was not notified of the time limits and was not otherwise aware of
them, that s/ he did not know and reasonably should not have known t hat the discriminatory
matter or personnel action occurred, that despite due di ligence s/he was prevented by
circumstances beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2). The record indicates that the last discriminatory event occurred on December 29, 2017, but that Complainant did not initiate EEO Counselor contact with an EEO Counselor until December 3, 2019, almost two years beyond the 45- day limitation period. On appeal, C omplainant has
presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although Complainant asserted on appeal that she did not
remember seeing any poster explaining the EEO complaint procedure and she was otherwise unaware of the time limit for contacting an EEO Counselor, the Agency provides evidence to the contrary. Complainant’s Postmaster’s sworn affidavit indicates that an EEO poste r had been
posted at the facility since September 2008.
Additionally, a copy of this poster is included in the record and states, in pertinent part, that
individual and class action complaints must be brought to the attention of the EEO office within 45 calendar days of the date of the alleged discriminatory act. Complainant, however, waited almost two years to initiate EEO Counselor contact.
We note, moreover, that the Commission has consistently held that a complainant must act with
due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v.
United States Postal Service , EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the
doctri ne of laches applied when complainant waited over two years from the date of the alleged
discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and
Human Service, EEOC Request No. 05901130 (Dec . 27, 1990). The doctrine of laches is an
equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Because Complainant did not act with reasonable diligence in contacting an
EEO Counselor, the doctrine of laches requires dism issal.
Accordingly, the A gency's decision to dismiss C omplainant's complaint on the grounds of
untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operation s (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 Commi ssion.
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 i n 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 r equests 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 21, 2020
Date | [
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445 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a41423.txt | 01a41423.txt | TXT | text/plain | 9,916 | Lynn B. Madore v. Department of the Treasury 01A41423 February 16, 2005 . Lynn B. Madore, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. | February 16, 2005 | Appeal Number: 01A41423
Case Facts:
In a formal EEO complaint dated October 14, 2003, complainant claimed
that the agency discriminated against her when during the processing of
her previous EEO complaint (Agency No. 03-2160):
1. On May 6, 2003, complainant learned the agency wanted to settle her
complaint based upon an incomplete investigation.
2. On or about June 13, 2003, complainant learned that the Territory
Manager did not believe that she was sexually harassed because the
Territory Manager sent her an e-mail in which he states that he instructed
her and the alleged perpetrator to avoid contact when in fact she was
never instructed not to have contact with the alleged perpetrator.
3. On July 31, 2003, complainant learned a coworker heard a rumor that
she filed a sexual harassment complaint.
4. On July 31, 2003, a coworker used the word horny in front of her,
which he would never have done if he had not known that she had filed
an EEO complaint.
5. On August 5, 2003, a coworker told her You know I tell the truth
which complainant surmises is in reference to her EEO complaint.
Complainant filed the instant complaint (which includes claims 1-5
stated above) after her Motion to Amend Agency No. 03-2160 to include
the aforementioned claims was denied by an EEOC Administrative Judge (AJ).
The AJ granted complainant's Motion to amend her complaint with respect
to the following claims:
6. Whether the agency discriminated against the complainant on the basis
of reprisal for prior protected EEO activity when during a meeting on
May 6, 2003, between the EEO Specialist, complainant, and complainant's
spouse, the EEO Specialist
a) told the complainant she didn't care who was sleeping with whom;
b) told the complainant she was glad to finally meet superman (referring
to the complainant's spouse);
c) told the complainant the matter was not serious since it did not
involve rape; and
d) asked if the complainant liked the coworker whom she was accusing
of sexual harassment, and asked if the complainant was jealous of the
relationship between the alleged perpetrator and another female coworker.
On October 17, 2003, the agency filed a Motion to Reconsider with the AJ
as to his ruling concerning issues 6a) thru d). On November 18, 2003,
the AJ granted the agency's Motion to Reconsider on the grounds that
complainant was alleging dissatisfaction with the EEO process.
On December 12, 2003, the agency responded to the instant complaint
by referring the matter to its division responsible for reviewing the
quality of complaints processing. The agency noted that the AJ had
dismissed these issues and directed it to refer complainant to its
official responsible for the quality of complaints processing.
On December 15, 2003, complainant filed the instant appeal. Complainant
contends that EEO officials breached EEO confidentiality as coworkers
made comments to her indicating that they were aware that she had filed
an EEO Complaint. The instant appeal concerns claims 1-6 as stated in
this decision.
On January 9, 2004, the agency division responsible for reviewing the
quality of complaint processing issued a decision wherein it dismissed the
instant complaint (claims 1-6) pursuant to 29 C.F.R. §1614.107 (a)(8) on
the grounds that the complaint alleges dissatisfaction with the processing
of a previously filed EEO complaint. The agency also determined that
the previous complaint had been properly processed. The agency further
determined that the investigative file is not incomplete and that
pursuit of a settlement at any time during the process is appropriate.
With regard to the statements allegedly made by the EEO Specialist,
the agency determined that even if such statements were made, they
did not affect the processing of the complaint and also do not state
an independent cause of action. With regard to complainant's claim
that her confidentiality was breached, the agency stated that there is
no anonymity in the formal complaint process, and that in any event,
there was no showing that individuals were improperly provided with
any information regarding the complaint. As for the claim concerning
the Territory Manager not believing complainant was sexually harassed,
the agency stated that this claim did not involve dissatisfaction with
the complaint process, but rather relates to the remedial action to end
the harassment.
Claims alleging dissatisfaction with the processing of a prior complaint
must be dismissed. See
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(8).
Dissatisfaction with the EEO process must be raised within the underlying
complaint, not a new complaint. See EEOC - Management Directive 110,
p. 5-23, 5-25 to 5-26 (November 9, 1999).
A review of the record reveals that nearly all of the claims of the
instant complaint focus on complainant's dissatisfaction with the
processing of her prior EEO complaint. We therefore find that the agency
properly dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(8).<1>
With regard to the claim concerning the Territory Manager not believing
complainant was sexually harassed, we find that this claim states the
same claim as the complaint of sexual harassment (Agency No. 03-2160) that
was decided by the agency on October 28, 2004. Therefore, this claim is
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1).
Final Decision:
Accordingly, the agency's decision to dismiss the complaint is hereby AFFIRMED. | Lynn B. Madore v. Department of the Treasury
01A41423
February 16, 2005
.
Lynn B. Madore,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A41423
Agency No. 04-2016
Hearing No. 270-2003-09219X
DECISION
In a formal EEO complaint dated October 14, 2003, complainant claimed
that the agency discriminated against her when during the processing of
her previous EEO complaint (Agency No. 03-2160):
1. On May 6, 2003, complainant learned the agency wanted to settle her
complaint based upon an incomplete investigation.
2. On or about June 13, 2003, complainant learned that the Territory
Manager did not believe that she was sexually harassed because the
Territory Manager sent her an e-mail in which he states that he instructed
her and the alleged perpetrator to avoid contact when in fact she was
never instructed not to have contact with the alleged perpetrator.
3. On July 31, 2003, complainant learned a coworker heard a rumor that
she filed a sexual harassment complaint.
4. On July 31, 2003, a coworker used the word horny in front of her,
which he would never have done if he had not known that she had filed
an EEO complaint.
5. On August 5, 2003, a coworker told her You know I tell the truth
which complainant surmises is in reference to her EEO complaint.
Complainant filed the instant complaint (which includes claims 1-5
stated above) after her Motion to Amend Agency No. 03-2160 to include
the aforementioned claims was denied by an EEOC Administrative Judge (AJ).
The AJ granted complainant's Motion to amend her complaint with respect
to the following claims:
6. Whether the agency discriminated against the complainant on the basis
of reprisal for prior protected EEO activity when during a meeting on
May 6, 2003, between the EEO Specialist, complainant, and complainant's
spouse, the EEO Specialist
a) told the complainant she didn't care who was sleeping with whom;
b) told the complainant she was glad to finally meet superman (referring
to the complainant's spouse);
c) told the complainant the matter was not serious since it did not
involve rape; and
d) asked if the complainant liked the coworker whom she was accusing
of sexual harassment, and asked if the complainant was jealous of the
relationship between the alleged perpetrator and another female coworker.
On October 17, 2003, the agency filed a Motion to Reconsider with the AJ
as to his ruling concerning issues 6a) thru d). On November 18, 2003,
the AJ granted the agency's Motion to Reconsider on the grounds that
complainant was alleging dissatisfaction with the EEO process.
On December 12, 2003, the agency responded to the instant complaint
by referring the matter to its division responsible for reviewing the
quality of complaints processing. The agency noted that the AJ had
dismissed these issues and directed it to refer complainant to its
official responsible for the quality of complaints processing.
On December 15, 2003, complainant filed the instant appeal. Complainant
contends that EEO officials breached EEO confidentiality as coworkers
made comments to her indicating that they were aware that she had filed
an EEO Complaint. The instant appeal concerns claims 1-6 as stated in
this decision.
On January 9, 2004, the agency division responsible for reviewing the
quality of complaint processing issued a decision wherein it dismissed the
instant complaint (claims 1-6) pursuant to 29 C.F.R. §1614.107 (a)(8) on
the grounds that the complaint alleges dissatisfaction with the processing
of a previously filed EEO complaint. The agency also determined that
the previous complaint had been properly processed. The agency further
determined that the investigative file is not incomplete and that
pursuit of a settlement at any time during the process is appropriate.
With regard to the statements allegedly made by the EEO Specialist,
the agency determined that even if such statements were made, they
did not affect the processing of the complaint and also do not state
an independent cause of action. With regard to complainant's claim
that her confidentiality was breached, the agency stated that there is
no anonymity in the formal complaint process, and that in any event,
there was no showing that individuals were improperly provided with
any information regarding the complaint. As for the claim concerning
the Territory Manager not believing complainant was sexually harassed,
the agency stated that this claim did not involve dissatisfaction with
the complaint process, but rather relates to the remedial action to end
the harassment.
Claims alleging dissatisfaction with the processing of a prior complaint
must be dismissed. See EEOC Regulation 29 C.F.R. § 1614.107(a)(8).
Dissatisfaction with the EEO process must be raised within the underlying
complaint, not a new complaint. See EEOC - Management Directive 110,
p. 5-23, 5-25 to 5-26 (November 9, 1999).
A review of the record reveals that nearly all of the claims of the
instant complaint focus on complainant's dissatisfaction with the
processing of her prior EEO complaint. We therefore find that the agency
properly dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(8).<1>
With regard to the claim concerning the Territory Manager not believing
complainant was sexually harassed, we find that this claim states the
same claim as the complaint of sexual harassment (Agency No. 03-2160) that
was decided by the agency on October 28, 2004. Therefore, this claim is
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). Accordingly,
the agency's decision to dismiss the complaint is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 16, 2005
__________________
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
______________________________
1We note that the AJ in his decision in Agency No. 03-2160 found that
the EEO Specialist's alleged statements did not materially affect the
processing of the complaint. The AJ further found that complainant
failed to show that the agency's attempts to settle the complaint, and
alleged breach of confidentiality, materially affected complainant's
ability to prosecute her complaint.
| [
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446 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A33797_r.txt | 01A33797_r.txt | TXT | text/plain | 8,869 | 01A33797 January 23, 2004 . Toby J. Pesek, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Commissary Agency) Agency. | January 23, 2004 | Appeal Number: 01A33797
Legal Analysis:
the Commission as Toby J. Pesek v. Department
of Defense (Defense Commissary Agency), EEOC Appeal No. 01A23665
(November 26, 2002). Complainant had appealed the June 7, 2002
agency decision, dismissing his complaint for failure to contact an
EEO Counselor in a timely manner. The agency stated that because the
most recent incident of alleged discrimination occurred on May 3, 2001,
complainant's contact with an EEO Counselor on February 12, 2002, was
beyond the 45-day limitation for timely contact and, therefore, untimely.
The Commission vacated the agency's dismissal and the matter was remanded
to the agency for a supplemental investigation because we were unable to
determine from the record whether complainant had actual or constructive
notice of the 45-day limitation period. Pesek, EEOC Appeal No. 01A23665.
The agency subsequently issued a new decision dismissing the complaint for
untimely EEO Counselor contact which is the subject of the present appeal.
The record contains a March 27, 2002 statement from Person A, an
agency secretary. Person A stated that it was her responsibility for
approximately the last six to seven years to keep the bulletin boards
current and to update all information, including all EEO information
posters. Also included in the record is a January 2, 2003 Memorandum from
the Regional Equal Employment Manager in which she stated that copies
of the EEO posters were placed in the employee break room. She stated
that Person A, the person responsible for displaying the posters, had
been questioned and had stated that EEO posters were always in full view.
The record contains a copy of a poster of the Individual Discrimination
Complaints Process which states that if an employee or applicant for
employment believed that he or she was discriminated against because
of race, color, religion, sex, national origin, age, physical or mental
handicap or reprisal, the individual had to consult with an EEO Counselor
within 45 days following the alleged discrimination. The poster,
identified thereon as DeCA WP poster 55-12 August 2001, also noted that
it was superseding DeCA WP Poster 55-12, January 1999. The record also
contains a second poster. This poster, identified as DeCa WP Poster
55-18, August 2001, is labeled Discrimination Complaints Procedures for
Civilian Employees and Job Applicants of the Defense Commissary Agency,
Western/Pacific Region in the United States. Poster 55-18 provides that
individuals who believed they were subjected to discrimination had to
contact an authorized EEO official or an EEO Counselor for pre-complaint
counseling within 45 days. It also advised that failure to meet the
45-day time limit could result in the dismissal of the complaint.
Poster 55-18 also states that employees in several named states,
including Montana, had to contact the host installation EEO office to file
a complaint. The poster notes that the host installation's EEO office's
telephone number and address were listed in the installation's telephone
directory and/or posted on official bulletin boards. Poster 55-18 also
advised that the Western/Pacific Region EEO Manager could be contacted.
The address and telephone and facsimile numbers where the EEO Manager
could be contacted were provided. Photographs of the break room and
the bulletin board where the posters were on display in the break room
are also part of the record.
The record also contains an April 6, 2000 agency Memorandum regarding
sexual harassment. The Memorandum informed employees to report
harassment to the Western/Pacific Region Equal Employment Manager and
that these managers were identified on postings in the equal employment
opportunity section of official bulletin boards at each Commissary.
Complainant signed for the Memorandum on January 24, 2001.
Complainant argues that he seldom went into the break room. Complainant
does not argue that the 45-day time limitation notice was not posted
during the relevant time frame in the break room. The Commission finds
that the evidence submitted by the agency is sufficient to show that
complainant had constructive notice of the time limit to contact an EEO
Counselor. The Commission finds that complainant's contact of an EEO
Counselor on February 12, 2002, was beyond the 45-day time limitation
and was untimely. Therefore, we find that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
Final Decision:
Accordingly, the agency's decision dismissing the complaint is AFFIRMED. | Toby J. Pesek v. Department of Defense (Defense Commissary Agency)
01A33797
January 23, 2004
.
Toby J. Pesek,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense (Defense Commissary Agency)
Agency.
Appeal No. 01A33797
Agency No. DECWP-22020040
DECISION
Complainant filed an appeal with this Commission from a June 10, 2003
agency decision, dismissing his complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely EEO Counselor contact. Complainant,
an employee of the agency since 1983, alleged that he was subjected to
discrimination on the basis of disability (cerebral palsy) when on May 3,
2001, he was terminated.
This matter was once before the Commission as Toby J. Pesek v. Department
of Defense (Defense Commissary Agency), EEOC Appeal No. 01A23665
(November 26, 2002). Complainant had appealed the June 7, 2002
agency decision, dismissing his complaint for failure to contact an
EEO Counselor in a timely manner. The agency stated that because the
most recent incident of alleged discrimination occurred on May 3, 2001,
complainant's contact with an EEO Counselor on February 12, 2002, was
beyond the 45-day limitation for timely contact and, therefore, untimely.
The Commission vacated the agency's dismissal and the matter was remanded
to the agency for a supplemental investigation because we were unable to
determine from the record whether complainant had actual or constructive
notice of the 45-day limitation period. Pesek, EEOC Appeal No. 01A23665.
The agency subsequently issued a new decision dismissing the complaint for
untimely EEO Counselor contact which is the subject of the present appeal.
The record contains a March 27, 2002 statement from Person A, an
agency secretary. Person A stated that it was her responsibility for
approximately the last six to seven years to keep the bulletin boards
current and to update all information, including all EEO information
posters. Also included in the record is a January 2, 2003 Memorandum from
the Regional Equal Employment Manager in which she stated that copies
of the EEO posters were placed in the employee break room. She stated
that Person A, the person responsible for displaying the posters, had
been questioned and had stated that EEO posters were always in full view.
The record contains a copy of a poster of the Individual Discrimination
Complaints Process which states that if an employee or applicant for
employment believed that he or she was discriminated against because
of race, color, religion, sex, national origin, age, physical or mental
handicap or reprisal, the individual had to consult with an EEO Counselor
within 45 days following the alleged discrimination. The poster,
identified thereon as DeCA WP poster 55-12 August 2001, also noted that
it was superseding DeCA WP Poster 55-12, January 1999. The record also
contains a second poster. This poster, identified as DeCa WP Poster
55-18, August 2001, is labeled Discrimination Complaints Procedures for
Civilian Employees and Job Applicants of the Defense Commissary Agency,
Western/Pacific Region in the United States. Poster 55-18 provides that
individuals who believed they were subjected to discrimination had to
contact an authorized EEO official or an EEO Counselor for pre-complaint
counseling within 45 days. It also advised that failure to meet the
45-day time limit could result in the dismissal of the complaint.
Poster 55-18 also states that employees in several named states,
including Montana, had to contact the host installation EEO office to file
a complaint. The poster notes that the host installation's EEO office's
telephone number and address were listed in the installation's telephone
directory and/or posted on official bulletin boards. Poster 55-18 also
advised that the Western/Pacific Region EEO Manager could be contacted.
The address and telephone and facsimile numbers where the EEO Manager
could be contacted were provided. Photographs of the break room and
the bulletin board where the posters were on display in the break room
are also part of the record.
The record also contains an April 6, 2000 agency Memorandum regarding
sexual harassment. The Memorandum informed employees to report
harassment to the Western/Pacific Region Equal Employment Manager and
that these managers were identified on postings in the equal employment
opportunity section of official bulletin boards at each Commissary.
Complainant signed for the Memorandum on January 24, 2001.
Complainant argues that he seldom went into the break room. Complainant
does not argue that the 45-day time limitation notice was not posted
during the relevant time frame in the break room. The Commission finds
that the evidence submitted by the agency is sufficient to show that
complainant had constructive notice of the time limit to contact an EEO
Counselor. The Commission finds that complainant's contact of an EEO
Counselor on February 12, 2002, was beyond the 45-day time limitation
and was untimely. Therefore, we find that the complaint was properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
Accordingly, the agency's 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 23, 2004
__________________
Date
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447 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A31433_r.txt | 01A31433_r.txt | TXT | text/plain | 8,172 | Karl L. Ore v. Department of Justice 01A31433 April 21, 2003 . Karl L. Ore, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency. | April 21, 2003 | Appeal Number: 01A31433
Complaint Allegations:
In his complaint, filed on October 23, 2002, complainant alleged that he was subjected to discrimination on the bases of race, sex, and age when in 2000 and April 2002, he was not promoted to the position of Physical Security Specialist, GS 13, based on accretion of duties; not offered to undergo a desk audit; and not given an opportunity to apply for promotion to GS 13, even through he was performing functions at the GS 13 level for several years.<1>
Case Facts:
Complainant filed a timely appeal with this Commission from the final
agency decision dated December 6, 2002, 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.
On August 9, 2002, complainant initiated contact with an EEO
Counselor. Informal efforts to resolve his concerns were unsuccessful.
In his complaint, filed on October 23, 2002, complainant alleged that
he was subjected to discrimination on the bases of race, sex, and age
when in 2000 and April 2002, he was not promoted to the position of
Physical Security Specialist, GS 13, based on accretion of duties; not
offered to undergo a desk audit; and not given an opportunity to apply
for promotion to GS 13, even through he was performing functions at the
GS 13 level for several years.<1>
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 until August 9, 2002,
which was beyond the forty-five day time limitation after the most
recent alleged event in April 2002 (management failed to favorably
act on his April 2002 request for promotion). Moreover, the agency
noted that complainant told the EEO Counselor that he first contacted
a local Commission District Office to seek assistance with his claims
of employment discrimination. In addition, the agency found that
complainant told the EEO Counselor that an EEOC Administrative Judge
instructed him to contact the agency's EEO office. According to the
agency, complainant knew or should have known about the EEO process and
the time limits because he attended a sexual harassment training class in
November 2000, and received a handout explaining the complaint process.
On appeal, complainant acknowledges attending a sexual harassment
training session in November 2000. However, complainant states it
is not clear that the instruction that was allegedly provided specified
that the 45-day limitation applied to all potential claimants, or merely
those who had claims of sexual harassment only.
The record contains a copy of course training sign-in sheet for the
"Prevention of Sexual Harassment" dated November 20, 2000. Complainant's
name is handwritten on the sign-in sheet; and next to his name is a
handwritten notation of his work phone number. The record also contains
a copy of handout of the EEO Complaints Processing, describing the
EEO process, including the applicable time limits.
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 finds that the alleged discriminatory events occurred
in 2000 and April 2002, but that complainant did not contact an EEO
Counselor until August 9, 2002, which is beyond the forty-five day
limitation period. We note that complainant, on appeal, acknowledged
that the 45-day time period for contacting an EEO Counselor was discussed
at the November 2000 sexual harassment training session; but determined
that it was unclear whether the limitation period was only for claims
of sexual harassment, or for other discrimination claims. We note that
in theEEO Complaints Processing handout that was passed out during the
sexual harassment training on November 20, 2000, outlined the EEO process
including the 45-day time limit for contacting an EEO Counselor on all
claims under Title VII, as well as disability and age-related claims.
We find that complainant had constructive knowledge of his EEO rights
and EEO applicable time limits. Therefore, we find that the agency
properly dismissed the complaint for untimely Counselor contact.
Final Decision:
Accordingly, the agency's decision to dismiss the complaint was proper and is hereby AFFIRMED. | Karl L. Ore v. Department of Justice
01A31433
April 21, 2003
.
Karl L. Ore,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A31433
Agency No. B-02-2454
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated December 6, 2002, 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.
On August 9, 2002, complainant initiated contact with an EEO
Counselor. Informal efforts to resolve his concerns were unsuccessful.
In his complaint, filed on October 23, 2002, complainant alleged that
he was subjected to discrimination on the bases of race, sex, and age
when in 2000 and April 2002, he was not promoted to the position of
Physical Security Specialist, GS 13, based on accretion of duties; not
offered to undergo a desk audit; and not given an opportunity to apply
for promotion to GS 13, even through he was performing functions at the
GS 13 level for several years.<1>
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 until August 9, 2002,
which was beyond the forty-five day time limitation after the most
recent alleged event in April 2002 (management failed to favorably
act on his April 2002 request for promotion). Moreover, the agency
noted that complainant told the EEO Counselor that he first contacted
a local Commission District Office to seek assistance with his claims
of employment discrimination. In addition, the agency found that
complainant told the EEO Counselor that an EEOC Administrative Judge
instructed him to contact the agency's EEO office. According to the
agency, complainant knew or should have known about the EEO process and
the time limits because he attended a sexual harassment training class in
November 2000, and received a handout explaining the complaint process.
On appeal, complainant acknowledges attending a sexual harassment
training session in November 2000. However, complainant states it
is not clear that the instruction that was allegedly provided specified
that the 45-day limitation applied to all potential claimants, or merely
those who had claims of sexual harassment only.
The record contains a copy of course training sign-in sheet for the
"Prevention of Sexual Harassment" dated November 20, 2000. Complainant's
name is handwritten on the sign-in sheet; and next to his name is a
handwritten notation of his work phone number. The record also contains
a copy of handout of the EEO Complaints Processing, describing the
EEO process, including the applicable time limits.
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 finds that the alleged discriminatory events occurred
in 2000 and April 2002, but that complainant did not contact an EEO
Counselor until August 9, 2002, which is beyond the forty-five day
limitation period. We note that complainant, on appeal, acknowledged
that the 45-day time period for contacting an EEO Counselor was discussed
at the November 2000 sexual harassment training session; but determined
that it was unclear whether the limitation period was only for claims
of sexual harassment, or for other discrimination claims. We note that
in theEEO Complaints Processing handout that was passed out during the
sexual harassment training on November 20, 2000, outlined the EEO process
including the 45-day time limit for contacting an EEO Counselor on all
claims under Title VII, as well as disability and age-related claims.
We find that complainant had constructive knowledge of his EEO rights
and EEO applicable time limits. Therefore, we find that the agency
properly dismissed the complaint for untimely Counselor contact.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 21, 2003
__________________
Date
1The record indicates that on June 29, 2002,
complainant retired from agency employment.
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448 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983218.r.txt | 01983218.r.txt | TXT | text/plain | 10,444 | February 11, 1998 | Appeal Number: 01983218
Case Facts:
Complainant filed the instant appeal from the agency's February 11, 1998
decision dismissing complainant's complaint for failure to timely contact
an EEO Counselor.<1> The agency defined the complaint as alleging that
complainant was discriminated against on June 9, 1997 when he was forced
to resign and when he was denied leave. The agency found, and the EEO
Counselor's report shows, that complainant initially contacted an EEO
Counselor on August 11, 1997.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1)) provides that
an aggrieved person must contact an EEO Counselor within 45 days of the
matter alleged to be discriminatory. The 45 day time limit shall be
extended when an 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.
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. § 1614.105(a)(2)).
On appeal complainant argues that he was unaware of the time deadline for
contacting an EEO Counselor. Constructive knowledge of the time limit
may be imputed to individuals. 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 matter 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.
For instance, 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. Therefore, we can not find that complainant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
The Commission shall remand the complaint to the agency so that the agency
may supplement the record with evidence showing whether complainant had
actual or constructive notice of the time limit for contacting an EEO
Counselor more than 45 days before he contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall investigate the issue of whether complainant had
actual or constructive knowledge of the time limit for contacting an
EEO Counselor more than 45 days before he 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 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 complaint accepting the complaint for
investigation or issue a new decision dismissing the complaint. A copy
of the letter accepting the complaint or new decision dismissing the
complaint must 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). | James A. Smith, )
Complainant, )
)
v. ) Appeal No. 01983218
) Agency No. 4-H-300-0217-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
Complainant filed the instant appeal from the agency's February 11, 1998
decision dismissing complainant's complaint for failure to timely contact
an EEO Counselor.<1> The agency defined the complaint as alleging that
complainant was discriminated against on June 9, 1997 when he was forced
to resign and when he was denied leave. The agency found, and the EEO
Counselor's report shows, that complainant initially contacted an EEO
Counselor on August 11, 1997.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 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 an 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.
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. § 1614.105(a)(2)).
On appeal complainant argues that he was unaware of the time deadline for
contacting an EEO Counselor. Constructive knowledge of the time limit
may be imputed to individuals. 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 matter 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.
For instance, 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. Therefore, we can not find that complainant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
The Commission shall remand the complaint to the agency so that the agency
may supplement the record with evidence showing whether complainant had
actual or constructive notice of the time limit for contacting an EEO
Counselor more than 45 days before he contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall investigate the issue of whether complainant had
actual or constructive knowledge of the time limit for contacting an
EEO Counselor more than 45 days before he 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 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 complaint accepting the complaint for
investigation or issue a new decision dismissing the complaint. A copy
of the letter accepting the complaint or new decision dismissing the
complaint must 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:
May 26, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.
| [
"Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)",
"861 F.2d 746",
"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",
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449 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a02816.txt | 01a02816.txt | TXT | text/plain | 8,686 | 01 . David T. Gonzales, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency. | December 22, 1998 | Appeal Number: 01A02816
Background:
Complainant filed a formal EEO complaint on December 22, 1998 in which
he alleged that he was subjected to a hostile work environment based
on his sex. Complainant's complaint derives from Co-worker A's EEO
complaint in which she alleged sexual harassment. According to Co-worker
A, complainant told Group Manager that Co-worker A requested sexual
favors from complainant.<1>
In its final decision, the agency dismissed complainant's complaint,
concluding that complainant was not aggrieved because he had not suffered
loss or harm with respect to a term, condition or privilege of employment.
The agency further reasoned that a claim arising from an EEO investigation
fails to state a claim.
On appeal, complainant contends, among other things, that he was subjected
to harassment by his supervisor, co-workers and Division Chiefs when:
(1) the location of his office was isolated in an intimidating fashion
after space alterations were made in the Harlington post of duty; (2)
he was given less favorable work assignments by his supervisor; and (3)
he was hindered from performing his job duties efficiently when females
in the office created a hostile work environment.<2>
Legal Analysis:
Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
Complainant filed a formal EEO complaint on December 22, 1998 in which
he alleged that he was subjected to a hostile work environment based
on his sex. Complainant's complaint derives from Co-worker A's EEO
complaint in which she alleged sexual harassment. According to Co-worker
A, complainant told Group Manager that Co-worker A requested sexual
favors from complainant.<1>
In its final decision, the agency dismissed complainant's complaint,
concluding that complainant was not aggrieved because he had not suffered
loss or harm with respect to a term, condition or privilege of employment.
The agency further reasoned that a claim arising from an EEO investigation
fails to state a claim.
On appeal, complainant contends, among other things, that he was subjected
to harassment by his supervisor, co-workers and Division Chiefs when:
(1) the location of his office was isolated in an intimidating fashion
after space alterations were made in the Harlington post of duty; (2)
he was given less favorable work assignments by his supervisor; and (3)
he was hindered from performing his job duties efficiently when females
in the office created a hostile work environment.<2>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(1) requires an agency to dismiss
a complaint, or portion thereof, 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; §1614.106(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 the instant case, complainant challenges the filing of an EEO
complaint by another employee. To the extent that complainant is
challenging the agency's processing or investigation of the EEO complaint
filed by another individual, the allegation fails to state a claim.
The Commission has previously held that the filing of an EEO complaint
by another individual does not constitute an injury by the agency to a
term, condition or privilege of employment. To allow the processing of
a complaint by an employee, wherein the employee challenges the filing
of an EEO complaint by a co-worker or other agency employee, would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May
25, 1994). Moreover, there is no remedial action available to complainant
when another individual files an EEO complaint, as the agency has no
authority to restrain an employee from raising EEO violations through the
EEO complaint process. The Commission further notes that an agency is
legally obligated to investigate a claim of sexual harassment. See Rogers
v. Department of Defense, EEOC Request No. 05940157 (February 24, 1995).
Therefore, we find complainant's complaint was properly dismissed pursuant
to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | David T. Gonzales v. Department of the Treasury
01A02816
03-30-01
.
David T. Gonzales,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A02816
Agency No. 00-2088
DECISION
INTRODUCTION
Complainant 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. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
Complainant filed a formal EEO complaint on December 22, 1998 in which
he alleged that he was subjected to a hostile work environment based
on his sex. Complainant's complaint derives from Co-worker A's EEO
complaint in which she alleged sexual harassment. According to Co-worker
A, complainant told Group Manager that Co-worker A requested sexual
favors from complainant.<1>
In its final decision, the agency dismissed complainant's complaint,
concluding that complainant was not aggrieved because he had not suffered
loss or harm with respect to a term, condition or privilege of employment.
The agency further reasoned that a claim arising from an EEO investigation
fails to state a claim.
On appeal, complainant contends, among other things, that he was subjected
to harassment by his supervisor, co-workers and Division Chiefs when:
(1) the location of his office was isolated in an intimidating fashion
after space alterations were made in the Harlington post of duty; (2)
he was given less favorable work assignments by his supervisor; and (3)
he was hindered from performing his job duties efficiently when females
in the office created a hostile work environment.<2>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(1) requires an agency to dismiss
a complaint, or portion thereof, 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; §1614.106(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 the instant case, complainant challenges the filing of an EEO
complaint by another employee. To the extent that complainant is
challenging the agency's processing or investigation of the EEO complaint
filed by another individual, the allegation fails to state a claim.
The Commission has previously held that the filing of an EEO complaint
by another individual does not constitute an injury by the agency to a
term, condition or privilege of employment. To allow the processing of
a complaint by an employee, wherein the employee challenges the filing
of an EEO complaint by a co-worker or other agency employee, would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May
25, 1994). Moreover, there is no remedial action available to complainant
when another individual files an EEO complaint, as the agency has no
authority to restrain an employee from raising EEO violations through the
EEO complaint process. The Commission further notes that an agency is
legally obligated to investigate a claim of sexual harassment. See Rogers
v. Department of Defense, EEOC Request No. 05940157 (February 24, 1995).
Therefore, we find complainant's complaint was properly dismissed pursuant
to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.
CONCLUSION
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
____03-30-01______________
Date
1The record indicates that Co-worker A discovered the rumor when Co-worker
B told her of it. Co-worker B contends that she heard the rumor from
Group Manager. Group Manager denies having knowledge of the rumor.
2Complainant is advised that if he wishes to pursue, through the EEO
process, these new allegations, he shall initiate contact with an EEO
counselor within 15 days after he receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
the above named allegations within the above 15 day period, the date
complainant filed the appeal statement, March 3, 2000, shall be deemed
to be the date of initial EEO contact, unless he previously contacted
a counselor regarding these matters, in which case the earlier date
should serve as the EEO counselor contact date. Alexander J. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16,
1998).
| [
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May 25, 1994)",
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"Alexander J. Qatsha v. Department of the Navy, EEOC Request No... | [
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450 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a01656.txt | 01a01656.txt | TXT | text/plain | 9,606 | December 20, 1999 | Appeal Number: 01A01656
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).
A review of the record reveals that complainant was the Special Emphasis
Program Manager for the Upward Mobility Program; that on September 20,
1999, complainant called the EEO Manager to advise him of training plans;
that the EEO Manager responded that he wanted an e-mail; and that on
September 27, 1999, complainant sent the requested e-mail. The record
further reflects that the next day, the EEO Manager sent a reply
asking for a complete package of the training so he could technically
scrutinize it; and that complainant viewed this response as an attack.
On September 29, 1999, the EEO Manager came to complainant's office to
ask if complainant had read his response. According to complainant,
the EEO Manager said he had gone from a GS-2 to a GS-13 in a White
man's environment and was not going to take any s from anyone.
Consequently, complainant argues, he resigned from the Special Emphasis
Program Manager position.
We agree with the agency that the alleged incident fails to state a claim.
Complainant has not shown how the EEO Manager's remark resulted in a
personal harm or loss regarding a term, condition, or privilege of his
employment. On appeal, complainant argues that the EEO Manager could
encourage others to file complaints against him. However, we find this to
be too speculative. Complainant is not rendered an aggrieved employee
by the Manager's statement. Moreover, we find that the complainant has
not alleged facts which are sufficiently severe and pervasive to state
a claim of harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
Final Decision:
Accordingly, the agency's dismissal of the complaint for failure to state a claim was proper and is hereby AFFIRMED. | James A. Williams, )
Complainant, )
)
v. )
) Appeal No. 01A01656
Togo D. West, Jr., ) Agency No. 2003-651
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On December 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. §1614.405).
Complainant contacted the EEO office claiming he was subjected to
discriminatory harassment. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint on the bases of race and reprisal. The agency framed the
incident of harassment as follows:
On September 29, 1999, the EEO Manager verbally attacked complainant.
As a result, complainant resigned his collateral duty position as
Special Emphasis Program Manager. Complainant believes that because
he had input concerning the EEO Manager's salary adjustment in 1996,
the Manager has held it against him.
On November 30, 1999, the agency issued a FAD dismissing the complaint
for failure to state a claim. Specifically, the agency concluded that
alleged incident involved isolated verbal comments without any concrete
action, which did not rise to the level of a hostile work environment.
Moreover, the agency determined that the alleged event did not constitute
constructive discharge. The agency also noted that the complaint
indicated that complainant was discriminated against on the basis of
reprisal for administrative retaliation, which did not identify a
claim of reprisal covered under the EEO statutes.
On appeal, complainant contends that the ORM in Houston failed to
thoroughly address his formal complaint because he filed it against
the EEO Manager. According to complainant, he was never asked why he
considered the incident to be a hostile work environment. Moreover,
complainant argues that the EEO Manager's actions could have an adverse
impact on his career. Complainant argues, for example, that the EEO
Manager's actions could encourage employees to file EEO complaints if
complainant does not upgrade them.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
A review of the record reveals that complainant was the Special Emphasis
Program Manager for the Upward Mobility Program; that on September 20,
1999, complainant called the EEO Manager to advise him of training plans;
that the EEO Manager responded that he wanted an e-mail; and that on
September 27, 1999, complainant sent the requested e-mail. The record
further reflects that the next day, the EEO Manager sent a reply
asking for a complete package of the training so he could technically
scrutinize it; and that complainant viewed this response as an attack.
On September 29, 1999, the EEO Manager came to complainant's office to
ask if complainant had read his response. According to complainant,
the EEO Manager said he had gone from a GS-2 to a GS-13 in a White
man's environment and was not going to take any s from anyone.
Consequently, complainant argues, he resigned from the Special Emphasis
Program Manager position.
We agree with the agency that the alleged incident fails to state a claim.
Complainant has not shown how the EEO Manager's remark resulted in a
personal harm or loss regarding a term, condition, or privilege of his
employment. On appeal, complainant argues that the EEO Manager could
encourage others to file complaints against him. However, we find this to
be too speculative. Complainant is not rendered an aggrieved employee
by the Manager's statement. Moreover, we find that the complainant has
not alleged facts which are sufficiently severe and pervasive to state
a claim of harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
Accordingly, the agency's dismissal of the complaint for failure to
state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. § 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
May 11, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 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.
| [
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997)",
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451 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01993535.r.txt | 01993535.r.txt | TXT | text/plain | 9,901 | March 26, 1999 | Appeal Number: 01993535
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (African-American) and in reprisal for prior EEO activity when: He was not promoted on September 26, 1997; He was not hired for a full time position on September 26, 1997; and He was harassed on September 26, 1997.
Case Facts:
On March 26, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 4, 1999, pertaining to his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.<1> In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American) and in reprisal
for prior EEO activity when:
He was not promoted on September 26, 1997;
He was not hired for a full time position on September 26, 1997; and
He was harassed on September 26, 1997.
The agency dismissed the complaint for untimely counselor contact,
because it found that complainant failed to contact an EEO Counselor with
the intent to file a complaint until February 26, 1998. Specifically,
the agency found that complainant may have spoken with an EEO Counselor
in August 1997, but did not wish to proceed with his complaint until
[his] work contract expired. Further, the agency found that complainant
did not return to discuss his claims with the counselor until February
26, 1998. Finally, the agency found that complainant had notice of
the forty-five day time limit through EEO posters and several training
classes, despite complainant's argument that the Counselor informed him
in August 1997, that he would have 180 days to file a complaint.
The agency attached a copy of complainant's training report that includes
a list of three EEO training sessions complainant attended on January 21,
1996, October 27, 1996, and March 26, 1997. The agency also provided a
statement from the EEO Counselor dated October 8, 1998, asserting that
she spoke with complainant in August 1997, but he stated that he may
have an EEO case, but not until [his] work contract expires. According
to the counselor, she informed complainant to contact her again if he
wished to initiate counseling. The Counselor also denies informing
complainant that he had 180 days to file a complaint. The agency also
included a statement from the facility EEO Manager dated December 31,
1998, stating that the facility had fifteen official bulletin boards
containing EEO information. Finally, the agency provided a copy of the
poster explaining the forty-five day time limit.
The record includes a Standard-Form-52 (SF-52) dated September 15, 1997.
The SF-52 officially terminated complainant effective September 26,
1997, because of lack of project funds.
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.
To satisfy the forty-five day contact requirement, the Commission
consistently has required complainants to contact an EEO Counselor
or official logically connected with the EEO process, and exhibit[ ]
an intent to begin the EEO process. EEOC - Management Directive (MD)
110, as revised Nov. 9, 1999, 2-1; See Washington v. Government Printing
Office, EEOC Request No. 05970523 (Jan. 19, 1999) (expressing belief that
discrimination occurred, without exhibiting intent to file a complaint,
did not constitute Counselor contact for time limitation purposes).
In August 1997, complainant contacted a counselor, but did not exhibit
an intent to begin the EEO process at that time. Further, complainant
was told to come-back to begin the EEO process, but did not return to the
Counselor until February 26, 1998. Given complainant's multiple training
sessions, and the plethora of posters containing EEO information, the
Commission finds that complainant had notice of the forty-five day time
limit, and was not misled by a Counselor.
Final Decision:
Accordingly, complainant's February 26, 1998 contact was untimely. CONCLUSION Accordingly, the agency's dismissal is AFFIRMED. | Tyrone Patterson, )
Complainant, )
)
v. ) Appeal No. 01993535
) Agency No. 98-1162
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On March 26, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 4, 1999, pertaining to his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.<1> In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American) and in reprisal
for prior EEO activity when:
He was not promoted on September 26, 1997;
He was not hired for a full time position on September 26, 1997; and
He was harassed on September 26, 1997.
The agency dismissed the complaint for untimely counselor contact,
because it found that complainant failed to contact an EEO Counselor with
the intent to file a complaint until February 26, 1998. Specifically,
the agency found that complainant may have spoken with an EEO Counselor
in August 1997, but did not wish to proceed with his complaint until
[his] work contract expired. Further, the agency found that complainant
did not return to discuss his claims with the counselor until February
26, 1998. Finally, the agency found that complainant had notice of
the forty-five day time limit through EEO posters and several training
classes, despite complainant's argument that the Counselor informed him
in August 1997, that he would have 180 days to file a complaint.
The agency attached a copy of complainant's training report that includes
a list of three EEO training sessions complainant attended on January 21,
1996, October 27, 1996, and March 26, 1997. The agency also provided a
statement from the EEO Counselor dated October 8, 1998, asserting that
she spoke with complainant in August 1997, but he stated that he may
have an EEO case, but not until [his] work contract expires. According
to the counselor, she informed complainant to contact her again if he
wished to initiate counseling. The Counselor also denies informing
complainant that he had 180 days to file a complaint. The agency also
included a statement from the facility EEO Manager dated December 31,
1998, stating that the facility had fifteen official bulletin boards
containing EEO information. Finally, the agency provided a copy of the
poster explaining the forty-five day time limit.
The record includes a Standard-Form-52 (SF-52) dated September 15, 1997.
The SF-52 officially terminated complainant effective September 26,
1997, because of lack of project funds.
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.
To satisfy the forty-five day contact requirement, the Commission
consistently has required complainants to contact an EEO Counselor
or official logically connected with the EEO process, and exhibit[ ]
an intent to begin the EEO process. EEOC - Management Directive (MD)
110, as revised Nov. 9, 1999, 2-1; See Washington v. Government Printing
Office, EEOC Request No. 05970523 (Jan. 19, 1999) (expressing belief that
discrimination occurred, without exhibiting intent to file a complaint,
did not constitute Counselor contact for time limitation purposes).
In August 1997, complainant contacted a counselor, but did not exhibit
an intent to begin the EEO process at that time. Further, complainant
was told to come-back to begin the EEO process, but did not return to the
Counselor until February 26, 1998. Given complainant's multiple training
sessions, and the plethora of posters containing EEO information, the
Commission finds that complainant had notice of the forty-five day time
limit, and was not misled by a Counselor. Accordingly, complainant's
February 26, 1998 contact was untimely.
CONCLUSION
Accordingly, the agency's dismissal 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
March 16, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Washington v. Government Printing Office, EEOC Request No. 05970523 (Jan. 19, 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",
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452 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120120438.txt | 0120120438.txt | TXT | text/plain | 12,880 | September 23, 2011 | Appeal Number: 0120120438
Background:
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Murray Lake Hills Station facility in Chattanooga, Tennessee.
On April 21, 2008, Complainant contacted an EEO Counselor regarding an overtime issue. On July 19, 2008, Complainant filed an EEO complaint alleging that the Manager of Customer Service (Manager) retaliated against her for protected EEO activity under Title VII when, on June 26, 2008, the Manager put Complainant off the clock.
Complainant identified the prior protected EEO activity as her activity during the informal processing of the case at bar. Complainant acknowledged that her EEO contact pertained to allegations against another official and did not involve the Manager of Customer Service, who had not yet begun to work at the Murray Lake Hills Station.
On June 26, 2008, following a verbal altercation, the Manager placed Complainant off the clock. Complainant acknowledged that she had not informed the Manager that she had sought informal EEO counseling.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. She requested a hearing before an EEOC Administrative Judge (AJ).
The AJ held a two-day hearing on June 2, 2010 and June 3, 2010. Complainant offered supplemental testimony to show that she was not at fault for the altercation. The AJ noted that the only issue presented for the hearing was whether the Manager retaliated against Complainant when she put her off the clock. The AJ limited the testimony of witnesses for both parties.
The Manager of Customer Service testified that Complainant's immediate supervisor informed her (the Manager) that Complainant had threatened to file an EEO complaint against another official. Complainant denied having made the statement. Complainant also denied asking her supervisor for an EEO telephone number. The evidence reflects that, on an unspecified date, Complainant asked her immediate supervisor for a telephone number to reach an EEO Counselor, while informing him that she was going to file an EEO complaint. The record does not reflect any evidence of a prior EEO complaint filed by Complainant against the Manager. Complainant testified that the Manager did occasionally work week at the Murray Lake Hills Station before she was assigned there. Complainant testified that she believed the Manager was aware of her EEO activity.
The AJ's decision relied on her credibility assessments. The AJ found that Complainant's versions of the facts changed significantly and this hurt Complainant's credibility in general. The AJ found that Complainant engaged in protected activity and had been placed off the clock on June 26, 2008, by the Manager of Customer Service. The AJ found that "there was not any credible evidence presented to show that [the named official] was aware of the Complainant's activity from any other source before she placed her off the clock or that [the named official] was motivated to harm the Complainant for calling the EEO office about [another named official]."
The AJ reasoned that it is critical to determine when the alleged discriminating official became aware. The Manager acknowledged that she had been made aware of Complainant's protected activity when Complainant's supervisor told her that Complainant had asked for the EEO telephone number and when the EEO Counselor visited the Station on July 2, 2008. The AJ found that it cannot be determined whether the conversation was held before or after the June 26, 2008 incident at issue. The AJ found that Complainant "has not established that [the named official] the alleged wrongdoer had knowledge of her protected EEO activity before [she] placed her off the clock. Without such knowledge [the official] was not in a position to retaliate against the Complainant for her EEO protected activity." The AJ stated there also was no credible evidence presented that her protected activity was a factor in any way in the challenged employment action. The AJ issued a decision in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed.
Legal Analysis:
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Murray Lake Hills Station facility in Chattanooga, Tennessee.
On April 21, 2008, Complainant contacted an EEO Counselor regarding an overtime issue. On July 19, 2008, Complainant filed an EEO complaint alleging that the Manager of Customer Service (Manager) retaliated against her for protected EEO activity under Title VII when, on June 26, 2008, the Manager put Complainant off the clock.
Complainant identified the prior protected EEO activity as her activity during the informal processing of the case at bar. Complainant acknowledged that her EEO contact pertained to allegations against another official and did not involve the Manager of Customer Service, who had not yet begun to work at the Murray Lake Hills Station.
On June 26, 2008, following a verbal altercation, the Manager placed Complainant off the clock. Complainant acknowledged that she had not informed the Manager that she had sought informal EEO counseling.
At the | Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120438
Hearing No. 430-2009-00055X
Agency No. 4H-370-0088-08
DECISION
Complainant filed an appeal from the Agency's September 23, 2011, 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 Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Murray Lake Hills Station facility in Chattanooga, Tennessee.
On April 21, 2008, Complainant contacted an EEO Counselor regarding an overtime issue. On July 19, 2008, Complainant filed an EEO complaint alleging that the Manager of Customer Service (Manager) retaliated against her for protected EEO activity under Title VII when, on June 26, 2008, the Manager put Complainant off the clock.
Complainant identified the prior protected EEO activity as her activity during the informal processing of the case at bar. Complainant acknowledged that her EEO contact pertained to allegations against another official and did not involve the Manager of Customer Service, who had not yet begun to work at the Murray Lake Hills Station.
On June 26, 2008, following a verbal altercation, the Manager placed Complainant off the clock. Complainant acknowledged that she had not informed the Manager that she had sought informal EEO counseling.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. She requested a hearing before an EEOC Administrative Judge (AJ).
The AJ held a two-day hearing on June 2, 2010 and June 3, 2010. Complainant offered supplemental testimony to show that she was not at fault for the altercation. The AJ noted that the only issue presented for the hearing was whether the Manager retaliated against Complainant when she put her off the clock. The AJ limited the testimony of witnesses for both parties.
The Manager of Customer Service testified that Complainant's immediate supervisor informed her (the Manager) that Complainant had threatened to file an EEO complaint against another official. Complainant denied having made the statement. Complainant also denied asking her supervisor for an EEO telephone number. The evidence reflects that, on an unspecified date, Complainant asked her immediate supervisor for a telephone number to reach an EEO Counselor, while informing him that she was going to file an EEO complaint. The record does not reflect any evidence of a prior EEO complaint filed by Complainant against the Manager. Complainant testified that the Manager did occasionally work week at the Murray Lake Hills Station before she was assigned there. Complainant testified that she believed the Manager was aware of her EEO activity.
The AJ's decision relied on her credibility assessments. The AJ found that Complainant's versions of the facts changed significantly and this hurt Complainant's credibility in general. The AJ found that Complainant engaged in protected activity and had been placed off the clock on June 26, 2008, by the Manager of Customer Service. The AJ found that "there was not any credible evidence presented to show that [the named official] was aware of the Complainant's activity from any other source before she placed her off the clock or that [the named official] was motivated to harm the Complainant for calling the EEO office about [another named official]."
The AJ reasoned that it is critical to determine when the alleged discriminating official became aware. The Manager acknowledged that she had been made aware of Complainant's protected activity when Complainant's supervisor told her that Complainant had asked for the EEO telephone number and when the EEO Counselor visited the Station on July 2, 2008. The AJ found that it cannot be determined whether the conversation was held before or after the June 26, 2008 incident at issue. The AJ found that Complainant "has not established that [the named official] the alleged wrongdoer had knowledge of her protected EEO activity before [she] placed her off the clock. Without such knowledge [the official] was not in a position to retaliate against the Complainant for her EEO protected activity." The AJ stated there also was no credible evidence presented that her protected activity was a factor in any way in the challenged employment action. The AJ issued a decision in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
On appeal, Complainant argues that the AJ's finding (that the alleged responsible official did not have knowledge of Complainant's prior EEO activity at the time she was put off the clock) is not supported by the evidence. Complainant also maintains that the Agency's articulated legitimate reason for placing her off the clock is without merit. Finally, Complainant argues that the AJ committed legal error by not allowing testimony from all of Complainant's witnesses.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or 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).
In this case, the AJ found that Complainant failed to establish an essential element of her prima facie case. The AJ reasoned that Complainant failed to prove with credible evidence that the alleged discriminating official was aware of Complainant's prior EEO activity at the time of the alleged retaliatory action. Complainant, herself, admitted that she had not told the alleged responsible official of her prior activity.
We find that substantial record evidence supports the AJ's finding.
In addition, we find that the AJ's analysis and application of the law was appropriate. Although the Agency articulated its reasons for its action, it was not necessary for the AJ to address the Agency's articulated reasons. The AJ found that Complainant failed to meet her burden to establish a prima facie case of retaliation. The decision properly rested on that finding.
Finally, we do not find that the AJ committed error when she limited the witness list for both parties. Complainant offered additional witness testimony on the June 26, 2008 incident and whether the Agency's action was warranted. We find that the offered evidence was not necessary in this case where the critical issue was retaliation and whether the alleged official knew of her prior activity when the action was taken.
For all of these reasons, we find no reason to disturb the final action, which adopted the AJ's post-hearing factual findings and conclusions of law.
Accordingly, we AFFIRM the Agency's final action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 23, 2014
__________________
Date
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453 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120110231.r.cmm.txt | 0120110231.r.cmm.txt | TXT | text/plain | 13,773 | Michael R. Getz, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | September 21, 2010 | Appeal Number: 0120110231
Background:
At the time of the events at issue, Complainant was employed by the Agency at the Louis Stokes Medical Center in Cleveland, Ohio.
According to Complainant, in October 2009, he was arrested and charged with aggravated theft and drug possession in connection with a suicide attempt at work where he allegedly stole and self-injected drugs, and was later found in an unresponsive state. By letter dated December 16, 2009, the Agency proposed to indefinitely suspend Complainant without pay as a result of the pending criminal charges stemming from this incident.
On December 21, 2009, Complainant initiated contact with an EEO counselor, alleging discrimination on the basis of disability when his indefinite suspension was proposed. Although Complainant participated in mediation, the EEO counselor issued him a notice of right to file a formal complaint. The record establishes that Complainant filed a formal EEO complaint concerning his indefinite suspension on March 25, 2010. Several days later, he filed a written notice withdrawing his complaint.
Prior to filing the formal EEO complaint, Complainant and the Agency entered into an agreement, dated February 4, 2010, identified as an "Alternative Discipline Letter," that provided, in pertinent part, that:
I. The basis for proposing and sustaining [Complainant's] indefinite suspension is the following:
State of Ohio v. Michael Getz [Case No. Omitted]
Theft: Aggravated Theft
Drug Possession
Drug Possession
II. [Complainant] admits to having been charged with the offenses lists in Paragraph One.
III. Prior Discipline: None
IV. Traditional Discipline: Indefinite suspension in a non-duty stats without pay pending outcome of criminal charges with possible further disciplinary action upon conviction.
V. Alternative Discipline: Indefinite suspension in a duty status with pay pending outcome of criminal charges with possible further disciplinary action upon conviction. Mr. Getz will continue to be detailed to a position outside of patient care pending outcome of criminal charges.
VI. The Employee understands that this Alternative Disciplinary Action will be retained in his Official Personnel Folder (OPF) and, in the case of future misconduct, will be given the same weight as the traditional penalty to support a higher disciplinary action, up to an including removal.
VII. The Agency agrees to remove this action from the Employee's OPF within fourteen calendar days of receiving notification that [complainant] has been found not guilty of all the charges.... Should [complainant] be found guilty of any or all of the charges . . . this action will remain in his OPF . . . .
VIII. The undersigned agree that all administrative appeal, statutory appeal, negotiated grievance, and Equal Employment Opportunity rights regarding this matter and regarding possible further disciplinary action upon conviction for these offenses are hereby waived.
In early March 2010, Complainant's criminal case was stayed by the court because he entered a Treatment in Lieu of Conviction program. Apparently, under the terms of this program, Complainant would only be convicted and sentenced if he was non-compliant with this treatment program. There is no indication in the record that Complainant has not been successful in the treatment program, and it appears he has not been convicted of the criminal charges stemming from the October 2009 incident.
However, by notice dated July 13, 2010, the Agency issued Complainant a notice of removal based on his "misconduct" during the incident in October 2009, rather than as a result of a criminal conviction.
By letter to the Agency dated August 17, 2010, Complainant alleged that the Agency breached "EEOC Settlement Contract Case #10-541-019". According to Complainant, "after EEOC mediation in which I requested simply to be returned to work . . . I signed an 'alternative discipline agreement' whereby I agreed to terminate my EEOC case and waive appeals in the matter." Complainant further stated that before signing the agreement, his attorney explained to the HR Labor Relations Specialist that Complainant would be entering a "treatment in lieu of conviction" agreement with the court. The attorney sought assurances that this would not have an impact upon Complainant's employment or the "alternative discipline agreement." The specialist responded that unless Complainant was convicted, "there would not be a problem." Thereafter, Complainant entered such an agreement with the court. Complainant believed that the proposed removal was in violation of the February 4, 2010 agreement.
In its final decision on the breach claim, the Agency found that the February 4, 2010 Alternative Discipline Letter did not resolve an EEO complaint, and therefore could not be subject to a breach claim brought under the Commission's EEO complaint processing regulations. Specifically, the Agency noted that when the agreement was executed, Complainant had one EEO matter at the EEO counseling stage. Despite the agreement that resulted in the Alternative Discipline Letter, Complainant was issued a notice of right to file by the counselor, and did, in fact, file a formal EEO complaint on March 25, 2010. Thereafter, he submitted a Notice of Withdrawal. Therefore, according to the Agency, the EEO complaint was closed because of Complainant's decision to withdraw, not because of the February 4, 2010 Alternative Discipline Letter. Moreover, citing the HR Labor Relations Specialist, the Alternative Discipline Letter does not mention the EEO complaint, and was not intended to resolve that matter.
In the alternative, the Agency contends that the agreement was not breached. The Agency asserted that the Alternative Dispute Letter related to Complainant's criminal indictment, and possible disciplinary actions if convicted. In contrast, the proposed removal related to Complainant's misconduct, which was not prohibited by the Alternative Discipline Letter.
On appeal, Complainant reiterates his belief that the agreement settled his EEO complaint and that the Agency's actions resulted in a breach. According to Complainant, the agreement provided that he would not be subject to further discipline unless he was convicted of a crime.
In response, the Agency disputes the Complainant's assertion. The Agency notes that the agreement only states that if there is a conviction that further disciplinary action would be possible. It did not expressly state that if there is not a conviction, Complainant would not be disciplined. The Agency requests that the Commission affirm its decision.
Legal Analysis:
the Commission's EEO complaint processing regulations. Specifically, the Agency noted that when the agreement was executed, Complainant had one EEO matter at the EEO counseling stage. Despite the agreement that resulted in the Alternative Discipline Letter, Complainant was issued a notice of right to file by the counselor, and did, in fact, file a formal EEO complaint on March 25, 2010. Thereafter, he submitted a Notice of Withdrawal. Therefore, according to the Agency, the EEO complaint was closed because of Complainant's decision to withdraw, not because of the February 4, 2010 Alternative Discipline Letter. Moreover, citing the HR Labor Relations Specialist, the Alternative Discipline Letter does not mention the EEO complaint, and was not intended to resolve that matter.
In the alternative, the Agency contends that the agreement was not breached. The Agency asserted that the Alternative Dispute Letter related to Complainant's criminal indictment, and possible disciplinary actions if convicted. In contrast, the proposed removal related to Complainant's misconduct, which was not prohibited by the Alternative Discipline Letter.
On appeal, Complainant reiterates his belief that the agreement settled his EEO complaint and that the Agency's actions resulted in a breach. According to Complainant, the agreement provided that he would not be subject to further discipline unless he was convicted of a crime.
In response, the Agency disputes the Complainant's assertion. The Agency notes that the agreement only states that if there is a conviction that further disciplinary action would be possible. It did not expressly state that if there is not a conviction, Complainant would not be disciplined. The Agency requests that the Commission affirm its decision.
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).
Based on a review of the record, the Commission finds that the agreement at issue does not resolve an EEO matter and is, therefore, outside of the Commission's regulatory process for resolving breach claims. The title of the document itself, "Alternative Discipline Letter" suggests that the document is not an EEO settlement agreement. Further, no EEO case is specifically mentioned. The Commission notes that the sole reference to the EEO complaint process in the entire document is in provision VIII, which is "boilerplate" language stating that Complainant waives his right to appeal regarding the proposed suspension based on his criminal charges. Most significantly, the record shows that Complainant filed a formal EEO complaint only after the agreement was entered. We agree with the Agency, that the EEO complaint was closed due to Complainant's submission of a withdrawal form, not as a result of the February 4, 2010 agreement.
However, we also note that Complainant is entitled, if he wishes, to file a new EEO complaint concerning his removal from Agency employment. If he decides to proceed with a new complaint, he should immediately contact an Agency EEO counselor. For the purposes of timeliness determinations, Complainant's initial contact should be deemed to be August 17, 2010, the date he first raised his breach claim with the Agency.
Final Decision:
Accordingly, the Agency's decision concerning Complainant's breach claim is hereby AFFIRMED. | Michael R. Getz,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110231
Agency No. 200H-0541-2010101082
DECISION
Complainant filed a timely appeal with this Commission from a final agency decision, dated September 21, 2010, concerning his claim that the Agency had breached the terms of a February 4, 2010 "alternative discipline" agreement between the parties. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of the events at issue, Complainant was employed by the Agency at the Louis Stokes Medical Center in Cleveland, Ohio.
According to Complainant, in October 2009, he was arrested and charged with aggravated theft and drug possession in connection with a suicide attempt at work where he allegedly stole and self-injected drugs, and was later found in an unresponsive state. By letter dated December 16, 2009, the Agency proposed to indefinitely suspend Complainant without pay as a result of the pending criminal charges stemming from this incident.
On December 21, 2009, Complainant initiated contact with an EEO counselor, alleging discrimination on the basis of disability when his indefinite suspension was proposed. Although Complainant participated in mediation, the EEO counselor issued him a notice of right to file a formal complaint. The record establishes that Complainant filed a formal EEO complaint concerning his indefinite suspension on March 25, 2010. Several days later, he filed a written notice withdrawing his complaint.
Prior to filing the formal EEO complaint, Complainant and the Agency entered into an agreement, dated February 4, 2010, identified as an "Alternative Discipline Letter," that provided, in pertinent part, that:
I. The basis for proposing and sustaining [Complainant's] indefinite suspension is the following:
State of Ohio v. Michael Getz [Case No. Omitted]
Theft: Aggravated Theft
Drug Possession
Drug Possession
II. [Complainant] admits to having been charged with the offenses lists in Paragraph One.
III. Prior Discipline: None
IV. Traditional Discipline: Indefinite suspension in a non-duty stats without pay pending outcome of criminal charges with possible further disciplinary action upon conviction.
V. Alternative Discipline: Indefinite suspension in a duty status with pay pending outcome of criminal charges with possible further disciplinary action upon conviction. Mr. Getz will continue to be detailed to a position outside of patient care pending outcome of criminal charges.
VI. The Employee understands that this Alternative Disciplinary Action will be retained in his Official Personnel Folder (OPF) and, in the case of future misconduct, will be given the same weight as the traditional penalty to support a higher disciplinary action, up to an including removal.
VII. The Agency agrees to remove this action from the Employee's OPF within fourteen calendar days of receiving notification that [complainant] has been found not guilty of all the charges.... Should [complainant] be found guilty of any or all of the charges . . . this action will remain in his OPF . . . .
VIII. The undersigned agree that all administrative appeal, statutory appeal, negotiated grievance, and Equal Employment Opportunity rights regarding this matter and regarding possible further disciplinary action upon conviction for these offenses are hereby waived.
In early March 2010, Complainant's criminal case was stayed by the court because he entered a Treatment in Lieu of Conviction program. Apparently, under the terms of this program, Complainant would only be convicted and sentenced if he was non-compliant with this treatment program. There is no indication in the record that Complainant has not been successful in the treatment program, and it appears he has not been convicted of the criminal charges stemming from the October 2009 incident.
However, by notice dated July 13, 2010, the Agency issued Complainant a notice of removal based on his "misconduct" during the incident in October 2009, rather than as a result of a criminal conviction.
By letter to the Agency dated August 17, 2010, Complainant alleged that the Agency breached "EEOC Settlement Contract Case #10-541-019". According to Complainant, "after EEOC mediation in which I requested simply to be returned to work . . . I signed an 'alternative discipline agreement' whereby I agreed to terminate my EEOC case and waive appeals in the matter." Complainant further stated that before signing the agreement, his attorney explained to the HR Labor Relations Specialist that Complainant would be entering a "treatment in lieu of conviction" agreement with the court. The attorney sought assurances that this would not have an impact upon Complainant's employment or the "alternative discipline agreement." The specialist responded that unless Complainant was convicted, "there would not be a problem." Thereafter, Complainant entered such an agreement with the court. Complainant believed that the proposed removal was in violation of the February 4, 2010 agreement.
In its final decision on the breach claim, the Agency found that the February 4, 2010 Alternative Discipline Letter did not resolve an EEO complaint, and therefore could not be subject to a breach claim brought under the Commission's EEO complaint processing regulations. Specifically, the Agency noted that when the agreement was executed, Complainant had one EEO matter at the EEO counseling stage. Despite the agreement that resulted in the Alternative Discipline Letter, Complainant was issued a notice of right to file by the counselor, and did, in fact, file a formal EEO complaint on March 25, 2010. Thereafter, he submitted a Notice of Withdrawal. Therefore, according to the Agency, the EEO complaint was closed because of Complainant's decision to withdraw, not because of the February 4, 2010 Alternative Discipline Letter. Moreover, citing the HR Labor Relations Specialist, the Alternative Discipline Letter does not mention the EEO complaint, and was not intended to resolve that matter.
In the alternative, the Agency contends that the agreement was not breached. The Agency asserted that the Alternative Dispute Letter related to Complainant's criminal indictment, and possible disciplinary actions if convicted. In contrast, the proposed removal related to Complainant's misconduct, which was not prohibited by the Alternative Discipline Letter.
On appeal, Complainant reiterates his belief that the agreement settled his EEO complaint and that the Agency's actions resulted in a breach. According to Complainant, the agreement provided that he would not be subject to further discipline unless he was convicted of a crime.
In response, the Agency disputes the Complainant's assertion. The Agency notes that the agreement only states that if there is a conviction that further disciplinary action would be possible. It did not expressly state that if there is not a conviction, Complainant would not be disciplined. The Agency requests that the Commission affirm its decision.
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).
Based on a review of the record, the Commission finds that the agreement at issue does not resolve an EEO matter and is, therefore, outside of the Commission's regulatory process for resolving breach claims. The title of the document itself, "Alternative Discipline Letter" suggests that the document is not an EEO settlement agreement. Further, no EEO case is specifically mentioned. The Commission notes that the sole reference to the EEO complaint process in the entire document is in provision VIII, which is "boilerplate" language stating that Complainant waives his right to appeal regarding the proposed suspension based on his criminal charges. Most significantly, the record shows that Complainant filed a formal EEO complaint only after the agreement was entered. We agree with the Agency, that the EEO complaint was closed due to Complainant's submission of a withdrawal form, not as a result of the February 4, 2010 agreement.
However, we also note that Complainant is entitled, if he wishes, to file a new EEO complaint concerning his removal from Agency employment. If he decides to proceed with a new complaint, he should immediately contact an Agency EEO counselor. For the purposes of timeliness determinations, Complainant's initial contact should be deemed to be August 17, 2010, the date he first raised his breach claim with the Agency.
Accordingly, the Agency's decision concerning Complainant's breach claim is hereby 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 23, 2011
__________________
Date
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454 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100683.txt | 0120100683.txt | TXT | text/plain | 11,664 | Marc A. Robinson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. | November 29, 2009 | Appeal Number: 0120100683
Background:
At the time of events giving rise to this complaint, Complainant
worked as a Transportation Security Screener at the John F. Kennedy
International Airport in Jamaica, New York. Complainant was hired
on July 11, 2004, and was subject to a two-year probationary period.
On June 25, 2005 Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability (mental)
when on February 24, 2005, the Agency terminated his employment after
a Fitness for Duty exam concluded that he was unfit for duty.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. The Agency filed a Motion to Dismiss on
December 5, 2007. The Agency also filed a motion for a decision without
a hearing on February 7, 2008. Over Complainantâs objections, the AJ
assigned to the case granted the Agencyâs motion for a decision without
a hearing and issued a decision without a hearing on October 5, 2009.
The AJ determined that Complainant failed to timely contact an EEO
Counselor and dismissed the complaint. The AJ further determined
that although Complainant demonstrated that he was an individual with
a disability, he failed to demonstrate that he was a qualified for
the position, with or without an accommodation. The AJ also found
that even if Complainant was qualified, the evidence showed that the
Agencyâs motivation for sending him for a fitness for duty evaluation
was precipitated by incidents that occurred during his employment and
not due to it regarding Complainant as an individual with a disability.
The Agency subsequently issued a final order adopting the AJâs finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
On appeal, Complainant argues that he established the Agency discriminated
against him on the basis of his disability when he was terminated.
The Agency does not make any arguments on appeal.
Legal Analysis:
The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agencyâs final order.
ISSUE PRESENTED
The issue presented is whether the AJ properly dismissed Complainantâs
complaint on the grounds of untimely EEO counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Transportation Security Screener at the John F. Kennedy
International Airport in Jamaica, New York. Complainant was hired
on July 11, 2004, and was subject to a two-year probationary period.
On June 25, 2005 Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability (mental)
when on February 24, 2005, the Agency terminated his employment after
a Fitness for Duty exam concluded that he was unfit for duty.
At the | 
Marc A. Robinson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120100683
Hearing No. 520-2008-0008X
Agency No. HS 05-TSA-002242
DECISION
On November 29, 2009, Complainant filed an appeal from the Agencyâs
October 23, 2009, final order 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). For the
following reasons, the Commission AFFIRMS the Agencyâs final order.
ISSUE PRESENTED
The issue presented is whether the AJ properly dismissed Complainantâs
complaint on the grounds of untimely EEO counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Transportation Security Screener at the John F. Kennedy
International Airport in Jamaica, New York. Complainant was hired
on July 11, 2004, and was subject to a two-year probationary period.
On June 25, 2005 Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability (mental)
when on February 24, 2005, the Agency terminated his employment after
a Fitness for Duty exam concluded that he was unfit for duty.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. The Agency filed a Motion to Dismiss on
December 5, 2007. The Agency also filed a motion for a decision without
a hearing on February 7, 2008. Over Complainantâs objections, the AJ
assigned to the case granted the Agencyâs motion for a decision without
a hearing and issued a decision without a hearing on October 5, 2009.
The AJ determined that Complainant failed to timely contact an EEO
Counselor and dismissed the complaint. The AJ further determined
that although Complainant demonstrated that he was an individual with
a disability, he failed to demonstrate that he was a qualified for
the position, with or without an accommodation. The AJ also found
that even if Complainant was qualified, the evidence showed that the
Agencyâs motivation for sending him for a fitness for duty evaluation
was precipitated by incidents that occurred during his employment and
not due to it regarding Complainant as an individual with a disability.
The Agency subsequently issued a final order adopting the AJâs finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
On appeal, Complainant argues that he established the Agency discriminated
against him on the basis of his disability when he was terminated.
The Agency does not make any arguments on appeal.
ANALYSIS AND FINDINGS
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, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judgeâs determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). 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).
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. 29 C.F.R. § 1614.105(a)(1) 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. U.S. Postal Service, EEOC Request No. 05950933
(July 8, 1996). The Commission has adopted a âreasonable suspicionâ
standard to determine when the limitation period is triggered under the
EEOC Regulations. See 29 C.F.R. § 1614.105(a)(2); Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). The time limit
to seek EEO counseling shall be extended when an individual shows he
was not notified of the time limit and was not otherwise aware of it.
29 C.F.R. § 1614.105(a)(2).
We find that Complainant failed to establish that he timely contacted
an EEO Counselor regarding the matters raised in this case. The record
reflects that Complainant contacted an EEO Counselor on March 9, 2005.
Nothing in the record shows that during the March 9, 2005 contact, he
exhibited an intent to begin the EEO process. The âcontact sheet,â
dated March 9, 2005 indicates that Complainant stated that the EEO bases
at issue were ânone at this time.â Further, the contact sheet record
of that initial contact states that Complainant âwill not discussâ
the reason he contacted the EEO office. We find that nothing else in
the record indicates Complainant intended to begin the EEO process at
the March 9, 2005 meeting.
The record further reveals that on March 10, 2005, the EEO office sent
Complainant an information package regarding the EEO process and included
all relevant time frames and requirements. The record reveals that
Complainant did not make any further contact with the EEO office or return
the forms until he faxed the EEO counselor documents on April 26, 2005.
Complainant did not provide any explanation as to why he delayed
submitting the forms even though he was informed of the proper time
frames by the Agencyâs March 10, 2005 mailing. Accordingly, we find
that the AJ appropriately issued a decision finding that Complainant did
not timely contact an EEO counselor or provide a rationale for extending
the time frame.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the
AJ appropriately issued a decision finding that Complainant failed to
timely contact an EEO Counselor. Therefore, we AFFIRM the Agencyâs
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another partyâs timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANTâS RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. âAgencyâ or âdepartmentâ means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (âRight to File a Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__12/15/11________________
Date
1 Because of our decision above, we do not find it necessary to determine
whether the AJ correctly found, without a hearing, that the Agency did
not discriminate against Complainant when he was terminated after a
Fitness for Duty exam concluded that he was unfit for duty.
------------------------------------------------------------
------------------------------------------------------------
| [
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"Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988)"
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455 | https://www.eeoc.gov/sites/default/files/decisions/2024_02_05/2023003400.pdf | 2023003400.pdf | PDF | application/pdf | 12,113 | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISS ION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arleen L .,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. | April 20, 2023 | Appeal Number: 2023003400
Background:
Complainant worked at the Agenc y’s Middle District of Florida Office in Tampa, Florida.
During the period at issue, from January 29, 2022, through January 28, 2023, Complainant was
detailed as a Management and Program Analyst, Grade GS -12, for the Management Support
Division - Property M anagement Office at the Agency’s headquarters facility in Arlington,
Virginia. On December 6, 2022, Complainant contacted an EEO Counselor . On January 4, 2023,
Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimina tion on the bases of disability (anxiety disorder) and in reprisal for prior EEO -
protected activity (Agency No. USM-2016-00289) 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 2023003400
1. On January 28, 2022, Complainant received a "Successful" mid- year performance rating
in retaliation for accepting a not to exceed (NTE) position with the Management Support
Division (MSD) - Property Management Office;
2. On March 1, 2022, Complainant was ins tructed to sign a hand receipt for 13 pages of
accountable property for which only three items were in her possession;
3. On March 31, 2022, Complainant was notified that her district will no longer allow for an alternative work schedule (AWS) and believes she was the only employee participating in an AWS; and
4. On August 30, 2022, she learned her NTE assignment and promotion with the MSD would not be extended beyond January 28, 2023.
On April 20, 2023, a final Agency decision issued dismissing Complainant’s formal EEO complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2).
The instant appeal followed. On appeal and through Counsel, Complainant argues that this case merited equitable tolling. Complainant asserts that she had been misled into understanding that it would have been possible to extend her MSD detail beyond the initial year. However,
unbeknownst to her, her regular supervisor in the Middle District of Florida Office had, in advance, predetermined that he would not authorize Complainant’s detail. According to Complainant, her regular supervisor resented her de cision to pursue the M SD detail and
retaliated against her as a result of her choosing to accept the MSD detail. Complainant maintains that it was not until she received an “outstanding” 2022 performance rating from her MSD detail supervisor that she bega n to suspect discrimination by her regular supervisor in the
Middle District of Florida Office. Counsel for Complainant asserted that reversal was appropriate because her EEO Counselor contact in December 2022 occurred shortly after she had Complainant re ceived the “outstan ding” rating for her MSD detail.
Legal Analysis:
the Commission’s website.
2 2023003400
1. On January 28, 2022, Complainant received a "Successful" mid- year performance rating
in retaliation for accepting a not to exceed (NTE) position with the Management Support
Division (MSD) - Property Management Office;
2. On March 1, 2022, Complainant was ins tructed to sign a hand receipt for 13 pages of
accountable property for which only three items were in her possession;
3. On March 31, 2022, Complainant was notified that her district will no longer allow for an alternative work schedule (AWS) and believes she was the only employee participating in an AWS; and
4. On August 30, 2022, she learned her NTE assignment and promotion with the MSD would not be extended beyond January 28, 2023.
On April 20, 2023, a final Agency decision issued dismissing Complainant’s formal EEO complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2).
The instant appeal followed. On appeal and through Counsel, Complainant argues that this case merited equitable tolling. Complainant asserts that she had been misled into understanding that it would have been possible to extend her MSD detail beyond the initial year. However,
unbeknownst to her, her regular supervisor in the Middle District of Florida Office had, in advance, predetermined that he would not authorize Complainant’s detail. According to Complainant, her regular supervisor resented her de cision to pursue the M SD detail and
retaliated against her as a result of her choosing to accept the MSD detail. Complainant maintains that it was not until she received an “outstanding” 2022 performance rating from her MSD detail supervisor that she bega n to suspect discrimination by her regular supervisor in the
Middle District of Florida Office. Counsel for Complainant asserted that reversal was appropriate because her EEO Counselor contact in December 2022 occurred shortly after she had Complainant re ceived the “outstan ding” rating for her MSD detail.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that the Agency shall dismiss a complaint for failure to comply with the applicable time limits.
2 To the extent that Complainant claimed that the Agency had breached a prior settlement
agreement arising from her 2016 f ormal EEO Complaint, the Agency properly issued a letter
dated March 9, 2023, instructing her how to pursue her breach allegation as a separate claim. We therefore decline to address the matter further.
3 In Complainant ’s appellate brief, Counsel did not specify the date on which Complainant
received the “ outstanding ” performance rating for the MSD detail.
3 2023003400
EEOC Reg ulation 29 C.F.R. § 1614.105(a)(1) provides, that complaints of discrimination must
be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within forty- five days of the eff ective
date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed
to a “supportive facts” standard) to determine when the 45- day limitation period is triggered.
Howard v. Dep’t of the Navy, EEOC Request N o. 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. Time limits are subject to waiver, estopp el, or equitable t olling. 29 C.F.R. § 1614.604(c).
We have consistently held that the Agency bears the burden to prove its final dismissal decisions. Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). The Agency
always must present sufficient evidence to support its determination of untimeliness. Guy v.
Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). Here, the Agency has met that
burden.
The record revealed that Complainant knew of her regular supervisor’s decision t o curtail the
MSD detail as early as August 30, 2022, but Complainant did not contact the EEO Counselor until December 6, 2022, which was well beyond the applicable 45- day time limit. Nothing in
the record reflects that Complainant was unaware of the 45 -day time limit for EEO Counselor
contact. Moreover, Agency records confirmed that Complainant recently received training on the applicable EEO time limits, during No Fear training in 2017 and during anti -harassment
training in 2019. We find unpersuasive C omplainant’s appellate arguments that circumstances beyond her control
prevented her from making timely EEO Counselor contact. We are not convinced that nondisclosure of her regular supervisor’s limits on the MSD detail warrants equitable tolling. It is unclear how Complainant’s 2022 “outstanding” performance rating caused her to suspect
discrimination. Furthermore, we note, as did the Agency, that during informal EEO counseling,
when asked about her delayed EEO Counselor contact, Complainant had state d she did not want
to “rock the boat.” In other words, Complainant’s apparent fear of reprisal made her hesitant to initiate EEO c ounseling. However, this Commission has consistently held that fear of retaliation
cannot justify extending the time limitati on for contacting an EEO Counselor. Duncan v. Dep’t
of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998) , citing Simeone v. Dep’t of
the Navy , EEOC Request No. 05930973 (Jan. 25, 1994).
Therefore, the Agency properly dismissed the present formal EEO complaint for failure to make timely EEO Counselor contact in accordance with 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2). | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISS ION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arleen L .,1
Complainant,
v.
Merrick B. Garland,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 2023003400
Agency No. USM-2023-000171
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 20, 2023, dismissing her complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
Complainant worked at the Agenc y’s Middle District of Florida Office in Tampa, Florida.
During the period at issue, from January 29, 2022, through January 28, 2023, Complainant was
detailed as a Management and Program Analyst, Grade GS -12, for the Management Support
Division - Property M anagement Office at the Agency’s headquarters facility in Arlington,
Virginia. On December 6, 2022, Complainant contacted an EEO Counselor . On January 4, 2023,
Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimina tion on the bases of disability (anxiety disorder) and in reprisal for prior EEO -
protected activity (Agency No. USM-2016-00289) 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 2023003400
1. On January 28, 2022, Complainant received a "Successful" mid- year performance rating
in retaliation for accepting a not to exceed (NTE) position with the Management Support
Division (MSD) - Property Management Office;
2. On March 1, 2022, Complainant was ins tructed to sign a hand receipt for 13 pages of
accountable property for which only three items were in her possession;
3. On March 31, 2022, Complainant was notified that her district will no longer allow for an alternative work schedule (AWS) and believes she was the only employee participating in an AWS; and
4. On August 30, 2022, she learned her NTE assignment and promotion with the MSD would not be extended beyond January 28, 2023.
On April 20, 2023, a final Agency decision issued dismissing Complainant’s formal EEO complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2).
The instant appeal followed. On appeal and through Counsel, Complainant argues that this case merited equitable tolling. Complainant asserts that she had been misled into understanding that it would have been possible to extend her MSD detail beyond the initial year. However,
unbeknownst to her, her regular supervisor in the Middle District of Florida Office had, in advance, predetermined that he would not authorize Complainant’s detail. According to Complainant, her regular supervisor resented her de cision to pursue the M SD detail and
retaliated against her as a result of her choosing to accept the MSD detail. Complainant maintains that it was not until she received an “outstanding” 2022 performance rating from her MSD detail supervisor that she bega n to suspect discrimination by her regular supervisor in the
Middle District of Florida Office. Counsel for Complainant asserted that reversal was appropriate because her EEO Counselor contact in December 2022 occurred shortly after she had Complainant re ceived the “outstan ding” rating for her MSD detail.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that the Agency shall dismiss a complaint for failure to comply with the applicable time limits.
2 To the extent that Complainant claimed that the Agency had breached a prior settlement
agreement arising from her 2016 f ormal EEO Complaint, the Agency properly issued a letter
dated March 9, 2023, instructing her how to pursue her breach allegation as a separate claim. We therefore decline to address the matter further.
3 In Complainant ’s appellate brief, Counsel did not specify the date on which Complainant
received the “ outstanding ” performance rating for the MSD detail.
3 2023003400
EEOC Reg ulation 29 C.F.R. § 1614.105(a)(1) provides, that complaints of discrimination must
be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within forty- five days of the eff ective
date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed
to a “supportive facts” standard) to determine when the 45- day limitation period is triggered.
Howard v. Dep’t of the Navy, EEOC Request N o. 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. Time limits are subject to waiver, estopp el, or equitable t olling. 29 C.F.R. § 1614.604(c).
We have consistently held that the Agency bears the burden to prove its final dismissal decisions. Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). The Agency
always must present sufficient evidence to support its determination of untimeliness. Guy v.
Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). Here, the Agency has met that
burden.
The record revealed that Complainant knew of her regular supervisor’s decision t o curtail the
MSD detail as early as August 30, 2022, but Complainant did not contact the EEO Counselor until December 6, 2022, which was well beyond the applicable 45- day time limit. Nothing in
the record reflects that Complainant was unaware of the 45 -day time limit for EEO Counselor
contact. Moreover, Agency records confirmed that Complainant recently received training on the applicable EEO time limits, during No Fear training in 2017 and during anti -harassment
training in 2019. We find unpersuasive C omplainant’s appellate arguments that circumstances beyond her control
prevented her from making timely EEO Counselor contact. We are not convinced that nondisclosure of her regular supervisor’s limits on the MSD detail warrants equitable tolling. It is unclear how Complainant’s 2022 “outstanding” performance rating caused her to suspect
discrimination. Furthermore, we note, as did the Agency, that during informal EEO counseling,
when asked about her delayed EEO Counselor contact, Complainant had state d she did not want
to “rock the boat.” In other words, Complainant’s apparent fear of reprisal made her hesitant to initiate EEO c ounseling. However, this Commission has consistently held that fear of retaliation
cannot justify extending the time limitati on for contacting an EEO Counselor. Duncan v. Dep’t
of Veterans Affairs , EEOC Request No. 05970315 (July 10, 1998) , citing Simeone v. Dep’t of
the Navy , EEOC Request No. 05930973 (Jan. 25, 1994).
Therefore, the Agency properly dismissed the present formal EEO complaint for failure to make timely EEO Counselor contact in accordance with 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2).
CONCLUSION
We AFFIRM the Agency’s final decision dismissing the formal EEO complaint for Complainant’s failure to make counseling contact within with EEOC’s regulatory time limits.
4 2023003400
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
opera tions 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 thi s decision. If the party requesting
reconsideration elects to file a statement or brief in su pport of the request, that statement or
brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from rece ipt of another party’s request for reconsideration within which to
submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit 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 reque st and arguments to the Director, Office
of Federal Operations, Equal Employment Opportunit y 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 a bsence 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 reconsidera tion 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 cir cumstances. See 29 C.F.R. § 1614.604(c).
5 2023003400
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 terminat e the
administrative processing of your complaint .
RIGHT TO REQUEST COUNSEL (Z0815)
If you w ant 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 di rectly to the court, not the Commission. The
court has the sole discretion to grant or deny t hese 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 4, 2023
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456 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53349.txt | 01a53349.txt | TXT | text/plain | 13,550 | 05 . Gale B. Gilmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency. | March 1, 2005 | Appeal Number: 01A53349
Complaint Allegations:
In her complaint, complainant alleged that she was harassed on the basis of her sex when on November 17, 2003, her supervisor (S1) made sexually charged statements. The agency dismissed complainant's claim for untimely timely counselor contact pursuant to 29 C.F.R. § 1614.105(a)(1). On appeal, complainant argues that she relied upon two harassment-related posters when she contacted her manager, the Customer Services Manager (CSM), regarding her complaint of harassment and believed that he was investigating her claim. The agency argues that an additional poster which stated that EEO complaints had to be filed within forty-five (45) days with an EEO counselor was posted in the appropriate areas according to an affidavit from S1 and requests that we affirm the FAD. As a preliminary matter, we note that on appeal, we review the FAD issued without a hearing de novo. 29 C.F.R. § 1614.405(a). Additionally, since there has not been an investigation, we find the facts in the light most favorable to complainant. According to the record, on November 17, 2003, complainant believed that she was a victim of sexual harassment when S1 made sexually charged comments to her. On the same day, she verbally notified CSM of the incident. On November 18, 2003, she followed up with CSM to find out how to file a complaint and to see if he had begun an investigation. At that time, CSM instructed complainant to write a statement describing the incident. Complainant believed she was complying with the instructions provided in the agency's Poster 21, titled The USPS Will Not Tolerate Sexual Harassment in the Workplace. On November 19, 2003, Complainant provided CSM with the statement he requested and she believed she filed a formal written complaint. Thereafter, complainant attempted to meet with CSM but was unable to do so. On December 7, 2004, CSM scheduled complainant to meet with a District Employee and Workplace Intervention Analyst. Complainant believed that the analyst was a representative of the EEO office. During the course of the meeting, it was revealed that he was not, and complainant requested pre-complaint processing from the EEO Counselor on that same day. When complainant's co-worker asked CSM why he scheduled a meeting without an EEO Counselor, CSM stated that he and the postmaster did not believe that complainant had a valid EEO complaint. An aggrieved individual must contact an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1). 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. 29 C.F.R. § 1614.105(a)(2). We find that the agency erred in dismissing complainant's complaint for untimely counselor contact since the record evidence demonstrates that complainant was not notified of her obligation to contact an EEO Counselor within 45 days of the harassing incident and was not otherwise aware of them. Specifically, we find that complainant contacted CSM on the same day the incident occurred. Complainant believed that she was in compliance with USPS Poster 21, which states Postal Employees who believe that they are victims of sexual harassment should bring the situation to the attention of impartial supervisors or managers. Complainant was under the impression that CSM was investigating her complaint and was not otherwise informed. Although the poster further provides that postal employees may seek relief through the Equal Employment Opportunity (EEO) complaint process . . . ., Poster 21 fails to mention any time limits or provide any contact information for the EEO Office. As such, we find that this poster fails to provide sufficient notice such that we could infer that complainant was aware of the relevant time limits.
Legal Analysis:
the Commission reverses the final agency decision
(FAD) and remands the complaint for an investigation.
In her complaint, complainant alleged that she was harassed on the
basis of her sex when on November 17, 2003, her supervisor (S1) made
sexually charged statements. The agency dismissed complainant's claim for
untimely timely counselor contact pursuant to 29 C.F.R. § 1614.105(a)(1).
On appeal, complainant argues that she relied upon two harassment-related
posters when she contacted her manager, the Customer Services Manager
(CSM), regarding her complaint of harassment and believed that he was
investigating her claim. The agency argues that an additional poster
which stated that EEO complaints had to be filed within forty-five (45)
days with an EEO counselor was posted in the appropriate areas according
to an affidavit from S1 and requests that we affirm the FAD.
As a preliminary matter, we note that on appeal, we review the FAD issued
without a hearing de novo. 29 C.F.R. § 1614.405(a). Additionally, since
there has not been an investigation, we find the facts in the light most
favorable to complainant. According to the record, on November 17, 2003,
complainant believed that she was a victim of sexual harassment when S1
made sexually charged comments to her. On the same day, she verbally
notified CSM of the incident. On November 18, 2003, she followed up
with CSM to find out how to file a complaint and to see if he had begun
an investigation. At that time, CSM instructed complainant to write a
statement describing the incident. Complainant believed she was complying
with the instructions provided in the agency's Poster 21, titled The USPS
Will Not Tolerate Sexual Harassment in the Workplace. On November 19,
2003, Complainant provided CSM with the statement he requested and she
believed she filed a formal written complaint. Thereafter, complainant
attempted to meet with CSM but was unable to do so. On December 7,
2004, CSM scheduled complainant to meet with a District Employee and
Workplace Intervention Analyst. Complainant believed that the analyst
was a representative of the EEO office. During the course of the meeting,
it was revealed that he was not, and complainant requested pre-complaint
processing from the EEO Counselor on that same day. When complainant's
co-worker asked CSM why he scheduled a meeting without an EEO Counselor,
CSM stated that he and the postmaster did not believe that complainant
had a valid EEO complaint.
An aggrieved individual must contact an EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory.
29 C.F.R. § 1614.105(a)(1). 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. 29 C.F.R. § 1614.105(a)(2).
We find that the agency erred in dismissing complainant's complaint
for untimely counselor contact since the record evidence demonstrates
that complainant was not notified of her obligation to contact an EEO
Counselor within 45 days of the harassing incident and was not otherwise
aware of them. Specifically, we find that complainant contacted CSM on
the same day the incident occurred. Complainant believed that she was in
compliance with USPS Poster 21, which states Postal Employees who believe
that they are victims of sexual harassment should bring the situation
to the attention of impartial supervisors or managers. Complainant
was under the impression that CSM was investigating her complaint and
was not otherwise informed. Although the poster further provides that
postal employees may seek relief through the Equal Employment Opportunity
(EEO) complaint process . . . ., Poster 21 fails to mention any time
limits or provide any contact information for the EEO Office. As such,
we find that this poster fails to provide sufficient notice such that
we could infer that complainant was aware of the relevant time limits.
The agency argues that Poster 72, titled Equal Employment Opportunity
Is the Law was also posted in the facility and provided the necessary
time limits, however, there is nothing in the record to support this.
The agency relies on a statement from CSM that an EEO notice was posted
on the permanent bulletin board as well as in the breakroom. CSM further
states that the notice informs employees of the 45 day time limit and
how to contact the EEO Office. However, CSM failed to specify exactly
which poster he was referring to and the agency has failed to include a
copy of that poster in the record evidence. Even if we were to assume
that the requisite notice of the time limits and contact information was
properly posted, the fact that complainant may have erroneously relied
on Poster 21 to assert her EEO rights is not unreasonable given the
information provided on Poster 21 and its failure to inform employees of
their need to contact an EEO Counselor within 45 days. This confusion
warrants tolling of the time limits in this case.<1>
In the FAD, the agency stated that complainant knew about the 45 day
time period because the Postmaster informed her of the time period
and provided her with the phone number of the EEO Counselor. We find
that there is nothing in the record alluding to this conversation, and
therefore it is unsubstantiated in the record. We note that we find it
troubling that complainant was not notified by CSM of her obligation to
contact the EEO Counselor within 45 days of the incident if she wished
to proceed with a formal complaint of discrimination and that CSM and
the postmaster did not consider the matter for EEO since they concluded
that complainant did not have a valid EEO complaint. While the agency
is required to establish a sexual harassment complaint process, this is
not intended to preclude employees from going forward with a complaint of
discrimination nor should CSM or the postmaster's personal opinions of the
merits of complainant's complaint influence their decision not to inform
complainant of her need to contact an EEO counselor in a timely manner.
As such, we find that the circumstances of this case warrant a tolling of
the time limit. See Schoenberg v. General Services Admin., EEOC Appeal
No. 01A00186 (February 4, 2000). Therefore, we reverse the FAD and remand
the complaint for further processing as required by the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim 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. | Gale B. Gilmer v. United States Postal Service
01A53349
07-26-05
.
Gale B. Gilmer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 01A53349
Agency No. 4c-270-0022-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 1, 2005, 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 reverses the final agency decision
(FAD) and remands the complaint for an investigation.
In her complaint, complainant alleged that she was harassed on the
basis of her sex when on November 17, 2003, her supervisor (S1) made
sexually charged statements. The agency dismissed complainant's claim for
untimely timely counselor contact pursuant to 29 C.F.R. § 1614.105(a)(1).
On appeal, complainant argues that she relied upon two harassment-related
posters when she contacted her manager, the Customer Services Manager
(CSM), regarding her complaint of harassment and believed that he was
investigating her claim. The agency argues that an additional poster
which stated that EEO complaints had to be filed within forty-five (45)
days with an EEO counselor was posted in the appropriate areas according
to an affidavit from S1 and requests that we affirm the FAD.
As a preliminary matter, we note that on appeal, we review the FAD issued
without a hearing de novo. 29 C.F.R. § 1614.405(a). Additionally, since
there has not been an investigation, we find the facts in the light most
favorable to complainant. According to the record, on November 17, 2003,
complainant believed that she was a victim of sexual harassment when S1
made sexually charged comments to her. On the same day, she verbally
notified CSM of the incident. On November 18, 2003, she followed up
with CSM to find out how to file a complaint and to see if he had begun
an investigation. At that time, CSM instructed complainant to write a
statement describing the incident. Complainant believed she was complying
with the instructions provided in the agency's Poster 21, titled The USPS
Will Not Tolerate Sexual Harassment in the Workplace. On November 19,
2003, Complainant provided CSM with the statement he requested and she
believed she filed a formal written complaint. Thereafter, complainant
attempted to meet with CSM but was unable to do so. On December 7,
2004, CSM scheduled complainant to meet with a District Employee and
Workplace Intervention Analyst. Complainant believed that the analyst
was a representative of the EEO office. During the course of the meeting,
it was revealed that he was not, and complainant requested pre-complaint
processing from the EEO Counselor on that same day. When complainant's
co-worker asked CSM why he scheduled a meeting without an EEO Counselor,
CSM stated that he and the postmaster did not believe that complainant
had a valid EEO complaint.
An aggrieved individual must contact an EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory.
29 C.F.R. § 1614.105(a)(1). 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. 29 C.F.R. § 1614.105(a)(2).
We find that the agency erred in dismissing complainant's complaint
for untimely counselor contact since the record evidence demonstrates
that complainant was not notified of her obligation to contact an EEO
Counselor within 45 days of the harassing incident and was not otherwise
aware of them. Specifically, we find that complainant contacted CSM on
the same day the incident occurred. Complainant believed that she was in
compliance with USPS Poster 21, which states Postal Employees who believe
that they are victims of sexual harassment should bring the situation
to the attention of impartial supervisors or managers. Complainant
was under the impression that CSM was investigating her complaint and
was not otherwise informed. Although the poster further provides that
postal employees may seek relief through the Equal Employment Opportunity
(EEO) complaint process . . . ., Poster 21 fails to mention any time
limits or provide any contact information for the EEO Office. As such,
we find that this poster fails to provide sufficient notice such that
we could infer that complainant was aware of the relevant time limits.
The agency argues that Poster 72, titled Equal Employment Opportunity
Is the Law was also posted in the facility and provided the necessary
time limits, however, there is nothing in the record to support this.
The agency relies on a statement from CSM that an EEO notice was posted
on the permanent bulletin board as well as in the breakroom. CSM further
states that the notice informs employees of the 45 day time limit and
how to contact the EEO Office. However, CSM failed to specify exactly
which poster he was referring to and the agency has failed to include a
copy of that poster in the record evidence. Even if we were to assume
that the requisite notice of the time limits and contact information was
properly posted, the fact that complainant may have erroneously relied
on Poster 21 to assert her EEO rights is not unreasonable given the
information provided on Poster 21 and its failure to inform employees of
their need to contact an EEO Counselor within 45 days. This confusion
warrants tolling of the time limits in this case.<1>
In the FAD, the agency stated that complainant knew about the 45 day
time period because the Postmaster informed her of the time period
and provided her with the phone number of the EEO Counselor. We find
that there is nothing in the record alluding to this conversation, and
therefore it is unsubstantiated in the record. We note that we find it
troubling that complainant was not notified by CSM of her obligation to
contact the EEO Counselor within 45 days of the incident if she wished
to proceed with a formal complaint of discrimination and that CSM and
the postmaster did not consider the matter for EEO since they concluded
that complainant did not have a valid EEO complaint. While the agency
is required to establish a sexual harassment complaint process, this is
not intended to preclude employees from going forward with a complaint of
discrimination nor should CSM or the postmaster's personal opinions of the
merits of complainant's complaint influence their decision not to inform
complainant of her need to contact an EEO counselor in a timely manner.
As such, we find that the circumstances of this case warrant a tolling of
the time limit. See Schoenberg v. General Services Admin., EEOC Appeal
No. 01A00186 (February 4, 2000). Therefore, we reverse the FAD and remand
the complaint for further processing as required by the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim 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
____07-26-05______________
Date
1The agency should reconfigure Poster 21 to
ensure that employees are made aware that contacting their supervisor
does not necessarily constitute formal EEO Counselor contact and should
include the requisite time limit on the poster.
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"29 C.F.R. § 1614.108",
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457 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120152060.txt | 0120152060.txt | TXT | text/plain | 12,576 | Tianna M.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. | May 5, 2015 | Appeal Number: 0120152060
Background:
At the time of events giving rise to her informal complaint, Complainant worked as a Registered Nurse (Clinical/Psychiatric) at the Agency's Evans Army Community Hospital, Inpatient Behavioral Health Unit in Fort Carson, Colorado.
Complainant filed a claim for Traumatic Injury with OWCP claiming that she was injured on the job on April 1, 2014, during a training exercise. She contends that she was injured during the hands-on segment of the training, entitled "Prevention and Management of Disruptive Behavior." Complainant resigned on May 2, 2014.
In June 2014, Complainant filed formal equal employment opportunity (EEO) complaint ARCARSON14MAY01907 alleging discrimination based on her national origin (Philippines), Race (Asian) and disability. The claim that the Agency accepted was whether Complainant was discriminated against based on her national origin and race when from April 2, 2014 to May 1, 2014, she was subjected to a hostile work environment by her supervisor (S1) commenting negatively on her work injury, performance, and late arrival to work, moving her work area and pressuring her to resign.3
On August 11, 2014, the parties settled the above formal complaint. Complainant agreed, among other things, to withdraw all EEO complaints and pre-complaints, including complaint ARCARSON14MAY01907, and all claims, demands, and causes of action, except workers' compensation, based on facts which predate the settlement agreement, whether currently filed or not, which she had toward the Agency.
In October 2014, OWCP denied Complainant's workers' compensation claim because it was not established that her injury and/or medical condition arose during the course of employment and within the scope of compensable work factors. It explained that her employer marked on the CA-1 form that Complainant was not in the Performance of Duty when she experienced her injury on April 1, 2014.
In February 2015, Complainant filed a claim with the Agency that it breached the settlement agreement, and on March 11, 2015, the Agency issued a final Agency decision (FAD) to her, appealable to our office, finding no breach. The docket number captioned in the FAD was ARCARSON14MAY01907. Complainant has not appealed this FAD.
On or about March 18, 2015, Complainant filed an informal complaint alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when she learned on March 12, 2015, that S1 intentionally misrepresented information in the Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, Form CA-1, filed with the Office of Workers' Compensation Programs (OWCP), resulting in the denial of her OWCP claim. This is the claim before us.
On March 23, 2015, an Agency EEO Manager wrote Complainant that the EEO office would not address her claim because it stated the same claim in her June 2014 formal complaint that she was harassed by S1, she already raised the matter in the EEO counseling process leading to her June 2014 complaint, and by signing the settlement agreement in August 2014, she closed out all inquiry into the claim accepted for her June 2014 complaint. The Agency wrote Complainant that her informal complaint concerned her workers' compensation claim which will not be readdressed by the EEO office, and it has no jurisdiction over the matter. It advised Complainant to contact OWCP. While the Agency did not give Complainant appeal rights, she filed an appeal with this office.
On appeal, Complainant contends, as she did before, that because she did not learn until March 12, 2015, that S1 misrepresented information in her CA-1 form, she made a new claim in her informal complaint. She indicates that the misrepresentation occurred by May 2014, when S1 filled out the supervisor portion of the CA-1 form. She suggests that she did not know the identity of those responsible until obtaining a copy of the portion of the form completed by S1. She also attributes the misrepresentation to an Agency official who works on workers' compensation matters.
In opposition to the appeal the Agency treats its March 23, 2015, letter as a FAD, and argues it was correctly decided. It argues that the proper venue to raise workers' compensation issues is with OWCP. | Tianna M.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152060
DECISION
On May 5, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a letter dated March 23, 2015, which was effectively a final Agency decision dismissing her informal 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.2
BACKGROUND
At the time of events giving rise to her informal complaint, Complainant worked as a Registered Nurse (Clinical/Psychiatric) at the Agency's Evans Army Community Hospital, Inpatient Behavioral Health Unit in Fort Carson, Colorado.
Complainant filed a claim for Traumatic Injury with OWCP claiming that she was injured on the job on April 1, 2014, during a training exercise. She contends that she was injured during the hands-on segment of the training, entitled "Prevention and Management of Disruptive Behavior." Complainant resigned on May 2, 2014.
In June 2014, Complainant filed formal equal employment opportunity (EEO) complaint ARCARSON14MAY01907 alleging discrimination based on her national origin (Philippines), Race (Asian) and disability. The claim that the Agency accepted was whether Complainant was discriminated against based on her national origin and race when from April 2, 2014 to May 1, 2014, she was subjected to a hostile work environment by her supervisor (S1) commenting negatively on her work injury, performance, and late arrival to work, moving her work area and pressuring her to resign.3
On August 11, 2014, the parties settled the above formal complaint. Complainant agreed, among other things, to withdraw all EEO complaints and pre-complaints, including complaint ARCARSON14MAY01907, and all claims, demands, and causes of action, except workers' compensation, based on facts which predate the settlement agreement, whether currently filed or not, which she had toward the Agency.
In October 2014, OWCP denied Complainant's workers' compensation claim because it was not established that her injury and/or medical condition arose during the course of employment and within the scope of compensable work factors. It explained that her employer marked on the CA-1 form that Complainant was not in the Performance of Duty when she experienced her injury on April 1, 2014.
In February 2015, Complainant filed a claim with the Agency that it breached the settlement agreement, and on March 11, 2015, the Agency issued a final Agency decision (FAD) to her, appealable to our office, finding no breach. The docket number captioned in the FAD was ARCARSON14MAY01907. Complainant has not appealed this FAD.
On or about March 18, 2015, Complainant filed an informal complaint alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when she learned on March 12, 2015, that S1 intentionally misrepresented information in the Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, Form CA-1, filed with the Office of Workers' Compensation Programs (OWCP), resulting in the denial of her OWCP claim. This is the claim before us.
On March 23, 2015, an Agency EEO Manager wrote Complainant that the EEO office would not address her claim because it stated the same claim in her June 2014 formal complaint that she was harassed by S1, she already raised the matter in the EEO counseling process leading to her June 2014 complaint, and by signing the settlement agreement in August 2014, she closed out all inquiry into the claim accepted for her June 2014 complaint. The Agency wrote Complainant that her informal complaint concerned her workers' compensation claim which will not be readdressed by the EEO office, and it has no jurisdiction over the matter. It advised Complainant to contact OWCP. While the Agency did not give Complainant appeal rights, she filed an appeal with this office.
On appeal, Complainant contends, as she did before, that because she did not learn until March 12, 2015, that S1 misrepresented information in her CA-1 form, she made a new claim in her informal complaint. She indicates that the misrepresentation occurred by May 2014, when S1 filled out the supervisor portion of the CA-1 form. She suggests that she did not know the identity of those responsible until obtaining a copy of the portion of the form completed by S1. She also attributes the misrepresentation to an Agency official who works on workers' compensation matters.
In opposition to the appeal the Agency treats its March 23, 2015, letter as a FAD, and argues it was correctly decided. It argues that the proper venue to raise workers' compensation issues is with OWCP.
ANALYSIS AND FINDINGS
As an initial matter, we take this opportunity to remind the Agency that when a Complainant contacts an Agency EEO office with the intention to file an EEO complaint, the EEO office has a duty to provide EEO counseling. 29 C.F.R. § 1614.105. If the dispute has not been resolved to the satisfaction of the aggrieved person, the EEO Counselor must tell the aggrieved person that she has the right to pursue the claim further through the formal complaint procedure. It is the aggrieved person, and not the EEO Counselor, who must decide whether to file a formal complaint of discrimination. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 2-17 (as revised Aug. 5, 2015). The EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. 29 C.F.R. § 1614.105(g). Here, the Agency violated these requirements. While the Agency believed that any complaint growing out of Complainant's informal complaint was subject to procedural dismissal, this was not a reason to refuse to provide EEO counseling. The Agency also had a duty, unless the parties otherwise resolved the matter, to issue the Complainant a notice of right to file a complaint. 29 C.F.R. § 1614.105. The time to dismiss a complaint pursuant to 29 C.F.R. § 1614.107, if the Agency finds it has reason to do so, is after a complainant files a formal complaint, not before. Such a dismissal must include appeal rights to this office. Dismissing Complainant's informal complaint without appeal rights violated the above regulations and EEO MD-110.
Nevertheless, we exercise our discretion not to remand Complainant's informal complaint for EEO counseling. In the August 11, 2014, settlement agreement, Complainant agreed to withdraw all claims, demands, and causes of action, except workers' compensation, based on facts which predate the settlement agreement, whether currently filed or not, which she had toward the Agency. This covers Complainant filing an EEO complaint alleging that the Agency discriminated against her when by May 2014, it misrepresented information in its portion of the CA-1, even if she was not aware of this until after the settlement agreement. Further, Complainant's informal complaint fails to state a claim because she is using the EEO process to collaterally attack the OWCP process. OWCP has the jurisdiction to assess the accuracy of the parties' submissions when making its determination on whether to grant a workers' compensation claim, not the EEOC. Schneider v. United States Postal Service, EEOC Request No. 05A01065 (Aug. 15, 2002).
The Agency's dismissal 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
May 4, 2016
__________________
Date
2 Since the Agency did not give Complainant appeal rights, we find her appeal was timely filed.
3 We make no assessment on whether this definition was correct. In its acceptance letter, the Agency declined to accept the basis of disability, finding Complainant had a transitory or minor impairment, not a disability. While this matter is not before us, we take this opportunity to advise the Agency that it erred in not accepting the basis of disability. A determination that an impairment does not rise to the level of a disability goes to the merits of the complaint, not to whether the disability basis should be accepted for investigation.
------------------------------------------------------------
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458 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120151028.txt | 0120151028.txt | TXT | text/plain | 13,354 | December 11, 2014 | Appeal Number: 0120151028
Background:
At the time of events giving rise to this complaint, Complainant worked at the Agency's EEO Office at the Glenn Research Center (GRC) in Cleveland, Ohio.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. The record indicated that due to Complainant's position within the Glenn Research Center's EEO Office, the matter was handled by the Agency's EEO Office located at its Headquarters. On April 14, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:1
(1) (g) Within 60 days of the execution of this settlement agreement, the Agency will expunge all supervisory records related to the Complainant from the GRC EEO Office.
(h) Within 60 days of the execution of this settlement agreement, the Agency will redact the official files of complainant's performance appraisals as reflected on the copies included as Attachment C.
By letter to the Agency dated August 19, 2014, Complainant alleged that the Agency was in breach of the Settlement Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that his new supervisor (Supervisor) stated that she was aware of his prior EEO activity based on a copy of the settlement agreement she found in his personnel file. The Supervisor was instructed to read Complainant's personnel file by his prior supervisor. The prior supervisor indicated that the Settlement Agreement and prior EEO complaints were part of that file. Complainant asserted that this was in conflict the "fresh start" that was envisioned by the parties with the settlement agreement. He claimed that due to the information, the Supervisor has retaliated against him for his prior protected EEO activity. Complainant noted that the actions taken by the Supervisor have been raised in a separate EEO complaint.
In its December 11, 2014 FAD, the Agency stated it conducted an inquiry and determined that it was in full compliance with the relevant terms of the agreement.
Complainant appealed. He asserted that he was not provided with the "fresh start" envisioned by the Settlement Agreement. He argued that the settlement agreement required the Agency to remove his EEO complaint materials from his supervisory file. However, that was not done he learned that the Supervisor was aware of the settlement agreement because it was located in the back of his personnel file. He further alleged that she retaliated against him because she learned of the agreement.
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).
As an initial matter, we note that Complainant failed to provide any evidence to support his assertion that paragraph (1)(h) was breached. The Agency has asserted that Complainant's2008 and 2009 performance appraisals were destroyed, and his 2010 appraisal was redacted consistent with the terms of the agreement. Complainant has not challenged this representation of compliance.
Therefore, we shall solely focus on paragraph (g) of the Settlement Agreement. The clear language of the agreement shows that the parties agreed to expunge all supervisory records related to Complainant from the GRC EEO Office. A fair reading of this language indicates that it relates to Complainant's status as an employee of the GRC EEO Office, not as a complainant within the EEO complaint process. Therefore, we determine that the settlement agreement called for the expunging of the supervisory records maintained by his prior supervisor concerning Complainant while he worked in the GRC EEO Office. When Complainant was reassigned, the supervisory file from the GRC EEO Office should not have been sent to his new Supervisor. However, the Supervisor told the EEO Counselor in connection with his new complaint that a copy of the settlement agreement was located in Complainant's supervisory file. | Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 0120151028
Agency Nos. NCN-09-GRC-017; NCN-09-GRC-058;
NCN-lO-GRC-007; NCN-lO-GRC-031;
NCN-lO-GRC-069; NCN-lO-GRC-079;
NCN-lO-GRC-093; NCN-1 l-GRC-029;
and NCN-11-GRC-038
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 11, 2014, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's EEO Office at the Glenn Research Center (GRC) in Cleveland, Ohio.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. The record indicated that due to Complainant's position within the Glenn Research Center's EEO Office, the matter was handled by the Agency's EEO Office located at its Headquarters. On April 14, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:1
(1) (g) Within 60 days of the execution of this settlement agreement, the Agency will expunge all supervisory records related to the Complainant from the GRC EEO Office.
(h) Within 60 days of the execution of this settlement agreement, the Agency will redact the official files of complainant's performance appraisals as reflected on the copies included as Attachment C.
By letter to the Agency dated August 19, 2014, Complainant alleged that the Agency was in breach of the Settlement Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that his new supervisor (Supervisor) stated that she was aware of his prior EEO activity based on a copy of the settlement agreement she found in his personnel file. The Supervisor was instructed to read Complainant's personnel file by his prior supervisor. The prior supervisor indicated that the Settlement Agreement and prior EEO complaints were part of that file. Complainant asserted that this was in conflict the "fresh start" that was envisioned by the parties with the settlement agreement. He claimed that due to the information, the Supervisor has retaliated against him for his prior protected EEO activity. Complainant noted that the actions taken by the Supervisor have been raised in a separate EEO complaint.
In its December 11, 2014 FAD, the Agency stated it conducted an inquiry and determined that it was in full compliance with the relevant terms of the agreement.
Complainant appealed. He asserted that he was not provided with the "fresh start" envisioned by the Settlement Agreement. He argued that the settlement agreement required the Agency to remove his EEO complaint materials from his supervisory file. However, that was not done he learned that the Supervisor was aware of the settlement agreement because it was located in the back of his personnel file. He further alleged that she retaliated against him because she learned of the agreement.
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).
As an initial matter, we note that Complainant failed to provide any evidence to support his assertion that paragraph (1)(h) was breached. The Agency has asserted that Complainant's2008 and 2009 performance appraisals were destroyed, and his 2010 appraisal was redacted consistent with the terms of the agreement. Complainant has not challenged this representation of compliance.
Therefore, we shall solely focus on paragraph (g) of the Settlement Agreement. The clear language of the agreement shows that the parties agreed to expunge all supervisory records related to Complainant from the GRC EEO Office. A fair reading of this language indicates that it relates to Complainant's status as an employee of the GRC EEO Office, not as a complainant within the EEO complaint process. Therefore, we determine that the settlement agreement called for the expunging of the supervisory records maintained by his prior supervisor concerning Complainant while he worked in the GRC EEO Office. When Complainant was reassigned, the supervisory file from the GRC EEO Office should not have been sent to his new Supervisor. However, the Supervisor told the EEO Counselor in connection with his new complaint that a copy of the settlement agreement was located in Complainant's supervisory file. Accordingly, we find that the Agency breached of the settlement agreement. To remedy the breach, Complainant asked that the Commission compensate him for harm suffered. However, we find that the only corrective action that should be taken is to remove all supervisory records existing as of the date the settlement agreement was executed from the records of the GRC EEO Office.
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 final determination and REMAND the matter for further action in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
I. The Agency shall remove all supervisory records related to Complainant (that were created prior to the execution of the settlement agreement) from the records of the GRC EEO Office.
II. The Agency shall provide Complainant the opportunity to review his records at the GRC EEO Office to ensure there are no relevant supervisory records maintained at that office, including the agreement itself.
III. The Agency shall complete all of the above actions within thirty (30) calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
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), 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
June 12, 2015
__________________
Date
1 We note that, as part of the Settlement Agreement, Complainant was reassigned to another Program Specialist position.
------------------------------------------------------------
------------------------------------------------------------
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"29 C.F.R. § 1614.402",
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459 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120150820.r.txt | 0120150820.r.txt | TXT | text/plain | 13,466 | November 18, 2014 | Appeal Number: 0120150820
Background:
Complainant began his employment with the Agency in September 2009 as a Registered Nurse at the Agency's Landstuhl Regional Medical Center in Landstuhl, Germany, subject to a one-year probationary period.
On November 5, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when:
on September 14, 2010, he was terminated from his position during his probationary period.
In his formal complaint, Complainant alleged that his job performance was not in question until the Colonel, who was the hospital commander, decided that Complainant was "unfit because of [his] non-conformance with sex-stereotypes." Complainant alleged that his homosexuality was well known by everyone in the department where he worked, including the Colonel.1
On November 18, 2014, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO counselor contact. Specifically, the Agency determined that Complainant initiated EEO counselor contact on October 14, 2014, which it determined was well beyond the 45-day limitation period from Complainant's September 14, 2010 termination.
An attachment to the 2014 EEO Counselor's Report reflects that Complainant asserted that he first contacted an Agency EEO office to complain about his termination on September 15, 2010, and visited the EEO office again on November 22, 2010. He stated that at that time, he was informed that his claim was not covered under the purview of Title VII, and he was referred to the Office of Special Counsel (OSC).2
Complainant filed a complaint with OSC, which subsequently dismissed his claim. Complainant thereafter determined that he could not seek recourse with the Merit Systems Protection Board (MSPB) because he had been a probationary employee. Complainant also indicated that he attempted to pursue a claim with the Office of Personnel Management (OPM), but determined that OPM had "no standing in the matter." Complainant stated the he thereafter sought information pursuant to the Freedom of Information Act, and received no information until January 2012, which was heavily redacted. Complainant asserted that he "finally spoke with someone" from the Equal Employment Opportunity Commission (EEOC or Commission) and, based on the information he received, contacted an Agency EEO counselor again on October 14, 2014.
Upon receipt of the Agency's decision dismissing his complaint, Complainant filed the instant appeal.
Legal Analysis:
EEOC Regulations 29 C.F.R. § 1614 107(a) (2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in 1614.105. Section 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 personnel action within 45 days of the effective date of the action.
Upon an examination of the record, we determine that this is not a case of Complainant "sitting on his rights" for a four-year period prior to initiating EEO Counselor contact. Instead, the record supports a finding that immediately following his termination, he unsuccessfully attempted to initiate EEO counselor contact, and was thereafter unsuccessfully routed to a succession of possible avenues of recourse, including the OSC, the MSPB and OPM. Finally, after contact with the EEOC, he again contacted an EEO Counselor in October 2014.
We note that in its statement opposing the appeal, the Agency argues that whether Complainant was given inaccurate information in 2010 is "not relevant to the present issue of timeliness." The Agency points to a timeline submitted by Complainant on appeal and argues that Complainant has identified November 22, 2010, as his first contact with an Agency EEO office. The Agency asserts that, even if true, this contact was still more than 45 days from Complainant's September 14, 2010 termination. However, the evidence of record supports Complainant's claim that his initial contact with an Agency EEO office was on September 15, 2010, one day after his termination. The record contains a copy of an "Information Inquiry Summary," prepared by an identified official in the Landstuhl EEO office, that clearly indicates that Complainant' s initial contact concerning his termination was made by telephone on September 15, 2010. At that time, he was scheduled for an in-person appointment to come into the EEO office on November 22, 2010. Documentation of that visit confirms that Complainant was told that his claim of discrimination was "not covered under the purview of TVII."
Given the unique circumstances of this case, we find equitable grounds for excusing Complainant's delay in successfully engaging the EEO complaint process to raise his claim of discrimination based on sex-stereotyping when he was terminated from his position with the Agency in September 2010. See 29 C.F.R. § 1614.604(c). | Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120150820
Agency No. AREUKAI14OCT03931
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 18, 2014, dismissing an equal employment opportunity (EEO) 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
Complainant began his employment with the Agency in September 2009 as a Registered Nurse at the Agency's Landstuhl Regional Medical Center in Landstuhl, Germany, subject to a one-year probationary period.
On November 5, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when:
on September 14, 2010, he was terminated from his position during his probationary period.
In his formal complaint, Complainant alleged that his job performance was not in question until the Colonel, who was the hospital commander, decided that Complainant was "unfit because of [his] non-conformance with sex-stereotypes." Complainant alleged that his homosexuality was well known by everyone in the department where he worked, including the Colonel.1
On November 18, 2014, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO counselor contact. Specifically, the Agency determined that Complainant initiated EEO counselor contact on October 14, 2014, which it determined was well beyond the 45-day limitation period from Complainant's September 14, 2010 termination.
An attachment to the 2014 EEO Counselor's Report reflects that Complainant asserted that he first contacted an Agency EEO office to complain about his termination on September 15, 2010, and visited the EEO office again on November 22, 2010. He stated that at that time, he was informed that his claim was not covered under the purview of Title VII, and he was referred to the Office of Special Counsel (OSC).2
Complainant filed a complaint with OSC, which subsequently dismissed his claim. Complainant thereafter determined that he could not seek recourse with the Merit Systems Protection Board (MSPB) because he had been a probationary employee. Complainant also indicated that he attempted to pursue a claim with the Office of Personnel Management (OPM), but determined that OPM had "no standing in the matter." Complainant stated the he thereafter sought information pursuant to the Freedom of Information Act, and received no information until January 2012, which was heavily redacted. Complainant asserted that he "finally spoke with someone" from the Equal Employment Opportunity Commission (EEOC or Commission) and, based on the information he received, contacted an Agency EEO counselor again on October 14, 2014.
Upon receipt of the Agency's decision dismissing his complaint, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulations 29 C.F.R. § 1614 107(a) (2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in 1614.105. Section 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 personnel action within 45 days of the effective date of the action.
Upon an examination of the record, we determine that this is not a case of Complainant "sitting on his rights" for a four-year period prior to initiating EEO Counselor contact. Instead, the record supports a finding that immediately following his termination, he unsuccessfully attempted to initiate EEO counselor contact, and was thereafter unsuccessfully routed to a succession of possible avenues of recourse, including the OSC, the MSPB and OPM. Finally, after contact with the EEOC, he again contacted an EEO Counselor in October 2014.
We note that in its statement opposing the appeal, the Agency argues that whether Complainant was given inaccurate information in 2010 is "not relevant to the present issue of timeliness." The Agency points to a timeline submitted by Complainant on appeal and argues that Complainant has identified November 22, 2010, as his first contact with an Agency EEO office. The Agency asserts that, even if true, this contact was still more than 45 days from Complainant's September 14, 2010 termination. However, the evidence of record supports Complainant's claim that his initial contact with an Agency EEO office was on September 15, 2010, one day after his termination. The record contains a copy of an "Information Inquiry Summary," prepared by an identified official in the Landstuhl EEO office, that clearly indicates that Complainant' s initial contact concerning his termination was made by telephone on September 15, 2010. At that time, he was scheduled for an in-person appointment to come into the EEO office on November 22, 2010. Documentation of that visit confirms that Complainant was told that his claim of discrimination was "not covered under the purview of TVII."
Given the unique circumstances of this case, we find equitable grounds for excusing Complainant's delay in successfully engaging the EEO complaint process to raise his claim of discrimination based on sex-stereotyping when he was terminated from his position with the Agency in September 2010. See 29 C.F.R. § 1614.604(c).
CONCLUSION
The Agency's final decision on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 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
August 12, 2015
__________________
Date
1 The EEO Counselor's Report summarizes an interview with Complainant's immediate supervisor, who confirms that she had no problems with Complainant's work performance and "refused" to be involved in the decision to terminate his employment, which she reported occurred while she was on leave at the behest of "higher ups." The record contains the termination letter, dated September 14, 2010, issued by someone other than Complainant's immediate supervisor, which indicates the action was being taken because Complainant's email communication of August 26, 2010, to the Colonel, and actions in a subsequent meeting with the Colonel, "reflect a lack of respect and professionalism . . . toward command staff."
2 The Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed in the 29 C.F.R. Part 1614 EEO complaint process. Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).
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460 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120150662.txt | 0120150662.txt | TXT | text/plain | 13,150 | Wilburn R.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. | November 13, 2014 | Appeal Number: 0120150662
Background:
At the time of events giving rise to this complaint, Complainant had been employed with the Agency until he resigned pursuant a mandatory retirement on April 30, 2013. Subsequently, Complainant applied for several positions including a Human Resources Specialists at the Agency's facility in Washington, D.C. However, Agency did not select him for any of the positions for which he applied.
Complainant indicated that he applied for the Human Resources Specialist position on September 3, 2013. After he was informed of the Agency's decision not to select him, on September 25, 2013, Complainant contacted the EEO Counselor alleging discrimination. Complainant believed that he was eligible for the positions in question through the Agency's Reassignment Eligible rights. During the informal counseling, Complainant indicated that he believed the matter constituted a "mixed case." To this end, he informed the EEO Counselor by email dated October 17, 2013, that he may also pursue the matter before the Merit Systems Protection Board (MSPB).
When the matter was not resolved informally, on November 12, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), age (57), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when he was not selected for various positions for which he applied. Complainant withdrew his EEO complaint on November 19, 2013, in order to pursue the matter through the MSPB appeal process.
On November 24, 2013, Complainant also filed an appeal with the MSPB regarding the same positions for which he applied and for which the Agency failed to select him. On February 26, 2014, the MSPB Administrative Judge (AJ) issued an Initial Decision dismissing the matter for lack of Board jurisdiction. Complainant appealed the Initial Decision to the Board. On October 21, 2014, the Board denied Complainant's appeal and affirmed the Initial Decision.
On October 22, 2014, Complainant contacted the EEO Counselor to request EEO Counseling. In response to Complainant's contact of the EEO Counselor, the Agency issued Complainant a letter dated November 13, 2014. The Agency indicated in the letter that once Complainant withdrew his complaint, his prior EEO complaint was permanently closed.
Complainant filed an appeal from the Agency's letter. Complainant asserted on appeal that his request for EEO Counseling on October 22, 2014, was denied by the Agency's letter. He indicated that he had informed the EEO Counselor in 2013 of his concern that the matter might be a "mixed case" but the EEO Counselor failed to provide him any information regarding the "mixed case" complaint process. Once he received the final order from the MSPB denying jurisdiction, he sought to pursue his claims as an EEO complaint which is now no longer mixed.
By letter dated December 16, 2014, the Commission informed the Agency of the Complainant's appeal. The Agency failed to respond to Complainant's appeal.
Legal Analysis:
the Commission informed the Agency of the Complainant's appeal. The Agency failed to respond to Complainant's appeal.
ANALYSIS AND FINDINGS
Upon review of the record, we agree with the Agency that the prior EEO complaint, namely Agency No. BOP-2013-01226, was properly closed when Complainant withdrew the matter in order to pursue his claim before the MSPB. However, since the withdrawal, the MSPB has denied jurisdiction on Complainant's appeal. As such, Complainant returned to the EEO Counselor at the Agency to raise his claim of discrimination when he was not selected for a number of positions in violation of Title VII and the ADEA. As such, Complainant's contact on October 22, 2014, was a new request for pre-complaint counseling. | Wilburn R.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120150662
Agency No. P-2013-01226
DECISION
Complainant filed a timely appeal with this Commission from the Agency's letter dated November 13, 2014, denying his request for EEO Counseling regarding 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had been employed with the Agency until he resigned pursuant a mandatory retirement on April 30, 2013. Subsequently, Complainant applied for several positions including a Human Resources Specialists at the Agency's facility in Washington, D.C. However, Agency did not select him for any of the positions for which he applied.
Complainant indicated that he applied for the Human Resources Specialist position on September 3, 2013. After he was informed of the Agency's decision not to select him, on September 25, 2013, Complainant contacted the EEO Counselor alleging discrimination. Complainant believed that he was eligible for the positions in question through the Agency's Reassignment Eligible rights. During the informal counseling, Complainant indicated that he believed the matter constituted a "mixed case." To this end, he informed the EEO Counselor by email dated October 17, 2013, that he may also pursue the matter before the Merit Systems Protection Board (MSPB).
When the matter was not resolved informally, on November 12, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), age (57), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when he was not selected for various positions for which he applied. Complainant withdrew his EEO complaint on November 19, 2013, in order to pursue the matter through the MSPB appeal process.
On November 24, 2013, Complainant also filed an appeal with the MSPB regarding the same positions for which he applied and for which the Agency failed to select him. On February 26, 2014, the MSPB Administrative Judge (AJ) issued an Initial Decision dismissing the matter for lack of Board jurisdiction. Complainant appealed the Initial Decision to the Board. On October 21, 2014, the Board denied Complainant's appeal and affirmed the Initial Decision.
On October 22, 2014, Complainant contacted the EEO Counselor to request EEO Counseling. In response to Complainant's contact of the EEO Counselor, the Agency issued Complainant a letter dated November 13, 2014. The Agency indicated in the letter that once Complainant withdrew his complaint, his prior EEO complaint was permanently closed.
Complainant filed an appeal from the Agency's letter. Complainant asserted on appeal that his request for EEO Counseling on October 22, 2014, was denied by the Agency's letter. He indicated that he had informed the EEO Counselor in 2013 of his concern that the matter might be a "mixed case" but the EEO Counselor failed to provide him any information regarding the "mixed case" complaint process. Once he received the final order from the MSPB denying jurisdiction, he sought to pursue his claims as an EEO complaint which is now no longer mixed.
By letter dated December 16, 2014, the Commission informed the Agency of the Complainant's appeal. The Agency failed to respond to Complainant's appeal.
ANALYSIS AND FINDINGS
Upon review of the record, we agree with the Agency that the prior EEO complaint, namely Agency No. BOP-2013-01226, was properly closed when Complainant withdrew the matter in order to pursue his claim before the MSPB. However, since the withdrawal, the MSPB has denied jurisdiction on Complainant's appeal. As such, Complainant returned to the EEO Counselor at the Agency to raise his claim of discrimination when he was not selected for a number of positions in violation of Title VII and the ADEA. As such, Complainant's contact on October 22, 2014, was a new request for pre-complaint counseling. Accordingly, we find that the Agency's letter dated November 13, 2014, constituted a denial of Complainant's request for pre-compliant counseling.
Prior to a request for a hearing in on an EEO complaint, the Agency may dismiss an EEO complaint on grounds set forth in 29 C.F.R. § 1614.107(a). However, in this case, the Agency did not permit Complainant to proceed to through the pre-complaint process and dismissed the matter prior to Complainant being provided with a right to file a formal complaint. We find that the Agency's action was in error. The Agency is required to provide Complainant with EEO counseling and issue a notice of right to file a formal complaint if the matter cannot be resolved through counseling. It cannot preclude Complainant from filing his formal complaint, and can only dismiss a matter, pursuant to 29 C.F.R. § 1614.107(a), once a formal complaint has been filed.
Moreover, when an agency dismisses a complaint under 29 C.F.R. § 1614.107(a), the Agency must issue a final decision. The final decision consists of the rationale for dismissing any claims in the complaint. The final decision shall contain notice of the right to appeal the final action to the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits, It should also include a copy of EEOC Form 573, Notice of Appeal/Petition, attached to the final decision/determination. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-34 (Aug. 5, 2015). Here, the Agency's dismissal of the pre-complaint matter failed to adequately meet these criteria for a proper final decision.
As the Agency has improperly processed the matter at hand and failed to provide Complainant the opportunity to file a formal complaint, we find that there was no appropriate dismissal to address. Therefore, we shall remand the matter for proper processing.
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 the matter at hand and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency shall process Complainant's pre-complaint contact within 15 calendar days of the date of this decision. If within 30 calendar days the matter is not resolved informally and the parties have not agreed to an extension, the Agency shall provide Complainant a notice of right to file a formal complaint.
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.
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
February 17, 2017
__________________
Date
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461 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A22993_r.txt | 01A22993_r.txt | TXT | text/plain | 11,614 | Willie G. Cooks v. Department of the Treasury 01A22993 March 13, 2003 . Willie G. Cooks, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. | March 13, 2003 | Appeal Number: 01A22993
Case Facts:
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact.
In his formal EEO complaint, complainant alleged that he was subjected
to discrimination on the basis of disability when:
On June 8, 2001, he discovered that unsealed envelopes containing
complainant's medical information were left on his desk; and
On June 22, 2001, he received his annual performance appraisal which
complainant believes did not correctly rate his performance.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically,
the agency found that complainant initiated untimely EEO Counselor
contact on November 5, 2001, which was more than forty-five days after
the alleged discriminatory events raised in the above referenced claims.
In the instant matter, the alleged discriminatory events occurred on June
8, 2001 and June 22, 2001, but complainant did not initiate contact with
an EEO Counselor until November 5, 2001, which is beyond the forty-five
(45) day limitation period. On appeal, complainant indicates that he
was unaware of the time limits for seeking EEO counseling. In addition,
complainant asserts that he was unaware that discrimination had occurred
until after September 20, 2001, when his supervisor did not meet with
him to discuss his appraisal, after previously agreeing to do so.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
EEOC Regulations further provide that the agency or the Commission shall
extend the time limits when the individual shows that he was not notified
of the time limits and was not otherwise aware of them, that he did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, complainant contends that not only was he unaware of the time
limits for seeking EEO counseling, but that he had no reason to suspect
discrimination until his supervisor failed to meet with him on September
20, 2001. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the 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. We are not persuaded by complainant's arguments
regarding when he first developed a reasonable suspicion of unlawful
employment discrimination. The record indicates that as early as July
19, 2001, complainant wrote a letter to his supervisor indicating that
he wished to discuss concerns he had with his performance appraisal.
However, complainant also asserts that he was unaware of the 45-day
time limitation for seeking EEO counseling. The agency has provided
the Commission with an affidavit from its EEO manager attesting that EEO
posters are on display throughout complainant's work site. Complainant
contends on appeal, that there were no bulletin boards displaying
EEO posters near his work area. 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. See Thompson v. Department of the Army,
EEOC Request No. 05910474 (September 12, 1991). However, we have held
that a generalized affirmation that an agency posted EEO information,
without specific evidence that the poster contained notice of the time
limits, is insufficient for constructive knowledge of the time limits for
EEO Counselor contact. Pride v. USPS, EEOC Request No. 05930134 (August
19, 1993). The record contains no evidence that posters on display at
the agency worksite provided specific information regarding the limitation
period for seeking contact with an EEO Counselor. The affidavit from the
agency's EEO manager does not indicate that the EEO posters specifically
contained information regarding the 45-day time limitation for seeking
EEO counseling. Therefore, it is the decision of this Commission to
VACATE the agency's dismissal and REMAND the matter to the agency for
supplementation of the record in accordance with the Order below.
ORDER
The agency is ORDERED to supplement the record with an affidavit or
other statement from individuals who have knowledge of the EEO posters,
attesting to whether posters containing the forty-five (45) time limit
for seeking counseling were posted at complainant's work site during
the relevant time period. 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 knowledge of the 45-day
time limit for contacting an EEO Counselor. Within thirty (30) calendar
days of the date this decision becomes final, the agency shall issue a
notice 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. | Willie G. Cooks v. Department of the Treasury
01A22993
March 13, 2003
.
Willie G. Cooks,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A22993
Agency No. 02-2113
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact.
In his formal EEO complaint, complainant alleged that he was subjected
to discrimination on the basis of disability when:
On June 8, 2001, he discovered that unsealed envelopes containing
complainant's medical information were left on his desk; and
On June 22, 2001, he received his annual performance appraisal which
complainant believes did not correctly rate his performance.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically,
the agency found that complainant initiated untimely EEO Counselor
contact on November 5, 2001, which was more than forty-five days after
the alleged discriminatory events raised in the above referenced claims.
In the instant matter, the alleged discriminatory events occurred on June
8, 2001 and June 22, 2001, but complainant did not initiate contact with
an EEO Counselor until November 5, 2001, which is beyond the forty-five
(45) day limitation period. On appeal, complainant indicates that he
was unaware of the time limits for seeking EEO counseling. In addition,
complainant asserts that he was unaware that discrimination had occurred
until after September 20, 2001, when his supervisor did not meet with
him to discuss his appraisal, after previously agreeing to do so.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
EEOC Regulations further provide that the agency or the Commission shall
extend the time limits when the individual shows that he was not notified
of the time limits and was not otherwise aware of them, that he did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, complainant contends that not only was he unaware of the time
limits for seeking EEO counseling, but that he had no reason to suspect
discrimination until his supervisor failed to meet with him on September
20, 2001. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the 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. We are not persuaded by complainant's arguments
regarding when he first developed a reasonable suspicion of unlawful
employment discrimination. The record indicates that as early as July
19, 2001, complainant wrote a letter to his supervisor indicating that
he wished to discuss concerns he had with his performance appraisal.
However, complainant also asserts that he was unaware of the 45-day
time limitation for seeking EEO counseling. The agency has provided
the Commission with an affidavit from its EEO manager attesting that EEO
posters are on display throughout complainant's work site. Complainant
contends on appeal, that there were no bulletin boards displaying
EEO posters near his work area. 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. See Thompson v. Department of the Army,
EEOC Request No. 05910474 (September 12, 1991). However, we have held
that a generalized affirmation that an agency posted EEO information,
without specific evidence that the poster contained notice of the time
limits, is insufficient for constructive knowledge of the time limits for
EEO Counselor contact. Pride v. USPS, EEOC Request No. 05930134 (August
19, 1993). The record contains no evidence that posters on display at
the agency worksite provided specific information regarding the limitation
period for seeking contact with an EEO Counselor. The affidavit from the
agency's EEO manager does not indicate that the EEO posters specifically
contained information regarding the 45-day time limitation for seeking
EEO counseling. Therefore, it is the decision of this Commission to
VACATE the agency's dismissal and REMAND the matter to the agency for
supplementation of the record in accordance with the Order below.
ORDER
The agency is ORDERED to supplement the record with an affidavit or
other statement from individuals who have knowledge of the EEO posters,
attesting to whether posters containing the forty-five (45) time limit
for seeking counseling were posted at complainant's work site during
the relevant time period. 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 knowledge of the 45-day
time limit for contacting an EEO Counselor. Within thirty (30) calendar
days of the date this decision becomes final, the agency shall issue a
notice 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
March 13, 2003
__________________
Date
| [
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"Title VII. See Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991)",
"Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.... | [
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462 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981930.txt | 01981930.txt | TXT | text/plain | 12,060 | December 4, 1997 | Appeal Number: 01981930
Background:
Appellant filed a formal complaint of discrimination on September 22,
1997, alleging discrimination on the bases of race (white), age (55) and
retaliation (prior EEO activity) when he was denied documents he claimed
to need in order to properly pursue a grievance he had filed in connection
with a Notice of Suspension. The agency characterized the discriminatory
event as the Notice of Suspension that was issued to appellant on April
7, 1997. The appellant, however, claimed that he did not suspect that
discrimination was behind the suspension and the withholding of documents
until July 31, 1997, the date that he says he contacted an EEO Counselor
about the matter. In its final agency decision, the agency dismissed
appellant's claim on the grounds that he had not timely contacted an EEO
Counselor about the alleged discrimination because more than 45 days had
elapsed between April 7, 1997 and July 31, 1997. 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 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).
In his appeal, appellant claims that he did not reasonably suspect that he
was suspended for discriminatory reasons until he discovered information
at a step 2 grievance meeting held on July 31, 1997. His appeal states
that he requested counseling for events that happened "that same day
7/31/97" because that was "when he first felt the discipline he had
received and the information being denied his representative was being
done for discriminatory reasons." Appellant claims to have developed
his reasonable suspicion on July 31, 1997, and to have raised this issue
with the EEO Counselor during the counseling sessions, and that therefore
his contact with the counselor is timely.
According to documents provided by the agency, however, appellant's
first contact with an EEO Counselor came in the form of a handwritten
letter requesting counseling. This letter was received by the Northern
CA EEO Complaints Processing Center on July 31, 1997, the date appellant
is claiming he first contacted an EEO Counselor, but the postmark on
the envelope indicates that he mailed it on July 29, 1997 (the date
on the actual letter is illegible). Therefore, the appellant had not
yet received the information that aroused his "reasonable suspicion"
at the time he decided to contact the EEO Counselor. Appellant's July
1997 handwritten letter requesting counseling and his EEO Request for
Counseling form, received by the EEO Counselor on August 27, 1997, each
seem to characterize the appellant's complaint as two separate issues:
(1)the suspension, and (2) the refusal to provide requested documents;
neither specify a date for the discriminatory event.
Appellant's formal complaint of discrimination re-characterizes the
discrimination to encompass only the denial of information requests,
and specifies the date of the discriminatory event as July 31, 1997.
He also alludes to "actions taken against me on or about July 17, 1997
by USPS management" but no further information is provided about this
in his complaint or appeal.
Appellant's representative, in his statement supporting the appeal of
the agency's decision, claims three areas of discrimination: "1.) the
denial of info[r]mation on 7/31/97; 2.) the disciplinary action; and
3.) the reprisal."
On the issue of the denial of information requests, we find that this
allegation constitutes a collateral attack on the grievance process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman
v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS,
EEOC Request No. 05930106 (June 24, 1993). The proper forum for appellant
to raise challenges to actions which occurred during the grievance
process was in that process itself, which it seems from appellant's
statement in support of his appeal that he did. Therefore, appellant
has failed to state a claim under 29 C.F.R. §1614.107(a).
On the issue of the suspension, we find that the agency properly
dismissed the complaint for untimely contact with an EEO Counselor
as more than 45 days elapsed between the April 4, 1997 Notice of
Suspension and the initial letter to the EEO counselor sent on July
29, 1997. The appellant claimed that he did not have reasonable
suspicion that he had been discriminated against until July 31, 1997.
The Commission finds, however, that the appellant should have known,
or should have suspected, that discrimination was behind the Notice
of Suspension upon its issuance. This is true in light of appellant's
statement on his EEO Request for Counseling Form, dated August 24, 1997,
that he was alleging retaliation "because all of them [his supervisors]
have been involved with the continuing discrimination against me since
[my] 1990 EEO complaint." If there were continuing discrimination,
as he claimed, then the issuance of the Notice of Suspension should
have aroused appellant's suspicion, and he was then obligated to go
to an EEO Counselor within 45 days. Additionally, appellant made his
initial EEO contact through the letter he sent requesting counseling,
which was postmarked July 29, 1997. This conflicts with his claim that he
received information arousing his reasonable suspicion on July 31, 1997.
Therefore, appellant's contact with an EEO Counselor was untimely with
respect to the Notice of Suspension, under 29 C.F.R. §1614.107(b).
Final Decision:
Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's complaint for untimely contact with an EEO Counselor. BACKGROUND Appellant filed a formal complaint of discrimination on September 22, 1997, alleging discrimination on the bases of race (white), age (55) and retaliation (prior EEO activity) when he was denied documents he claimed to need in order to properly pursue a grievance he had filed in connection with a Notice of Suspension. The agency characterized the discriminatory event as the Notice of Suspension that was issued to appellant on April 7, 1997. The appellant, however, claimed that he did not suspect that discrimination was behind the suspension and the withholding of documents until July 31, 1997, the date that he says he contacted an EEO Counselor about the matter. In its final agency decision, the agency dismissed appellant's claim on the grounds that he had not timely contacted an EEO Counselor about the alleged discrimination because more than 45 days had elapsed between April 7, 1997 and July 31, 1997. 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 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). In his appeal, appellant claims that he did not reasonably suspect that he was suspended for discriminatory reasons until he discovered information at a step 2 grievance meeting held on July 31, 1997. His appeal states that he requested counseling for events that happened "that same day 7/31/97" because that was "when he first felt the discipline he had received and the information being denied his representative was being done for discriminatory reasons." Appellant claims to have developed his reasonable suspicion on July 31, 1997, and to have raised this issue with the EEO Counselor during the counseling sessions, and that therefore his contact with the counselor is timely. According to documents provided by the agency, however, appellant's first contact with an EEO Counselor came in the form of a handwritten letter requesting counseling. This letter was received by the Northern CA EEO Complaints Processing Center on July 31, 1997, the date appellant is claiming he first contacted an EEO Counselor, but the postmark on the envelope indicates that he mailed it on July 29, 1997 (the date on the actual letter is illegible). Therefore, the appellant had not yet received the information that aroused his "reasonable suspicion" at the time he decided to contact the EEO Counselor. Appellant's July 1997 handwritten letter requesting counseling and his EEO Request for Counseling form, received by the EEO Counselor on August 27, 1997, each seem to characterize the appellant's complaint as two separate issues: (1)the suspension, and (2) the refusal to provide requested documents; neither specify a date for the discriminatory event. Appellant's formal complaint of discrimination re-characterizes the discrimination to encompass only the denial of information requests, and specifies the date of the discriminatory event as July 31, 1997. He also alludes to "actions taken against me on or about July 17, 1997 by USPS management" but no further information is provided about this in his complaint or appeal. Appellant's representative, in his statement supporting the appeal of the agency's decision, claims three areas of discrimination: "1.) the denial of info[r]mation on 7/31/97; 2.) the disciplinary action; and 3.) the reprisal." On the issue of the denial of information requests, we find that this allegation constitutes a collateral attack on the grievance process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for appellant to raise challenges to actions which occurred during the grievance process was in that process itself, which it seems from appellant's statement in support of his appeal that he did. Therefore, appellant has failed to state a claim under 29 C.F.R. §1614.107(a). On the issue of the suspension, we find that the agency properly dismissed the complaint for untimely contact with an EEO Counselor as more than 45 days elapsed between the April 4, 1997 Notice of Suspension and the initial letter to the EEO counselor sent on July 29, 1997. The appellant claimed that he did not have reasonable suspicion that he had been discriminated against until July 31, 1997. The Commission finds, however, that the appellant should have known, or should have suspected, that discrimination was behind the Notice of Suspension upon its issuance. This is true in light of appellant's statement on his EEO Request for Counseling Form, dated August 24, 1997, that he was alleging retaliation "because all of them [his supervisors] have been involved with the continuing discrimination against me since [my] 1990 EEO complaint." If there were continuing discrimination, as he claimed, then the issuance of the Notice of Suspension should have aroused appellant's suspicion, and he was then obligated to go to an EEO Counselor within 45 days. Additionally, appellant made his initial EEO contact through the letter he sent requesting counseling, which was postmarked July 29, 1997. This conflicts with his claim that he received information arousing his reasonable suspicion on July 31, 1997. Therefore, appellant's contact with an EEO Counselor was untimely with respect to the Notice of Suspension, under 29 C.F.R. §1614.107(b). Accordingly, for the reasons stated above, the decision of the agency is AFFIRMED. | Marston Schultz v. United States Postal Service
Marston Schultz, )
Appellant, )
) Appeal No. 01981930
v. ) Agency No. 4F-940-0177-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
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 December 4, 1997 and received by appellant on December 8, 1997.
The appeal was postmarked January 2, 1998. Accordingly, the appeal is
timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint of discrimination on September 22,
1997, alleging discrimination on the bases of race (white), age (55) and
retaliation (prior EEO activity) when he was denied documents he claimed
to need in order to properly pursue a grievance he had filed in connection
with a Notice of Suspension. The agency characterized the discriminatory
event as the Notice of Suspension that was issued to appellant on April
7, 1997. The appellant, however, claimed that he did not suspect that
discrimination was behind the suspension and the withholding of documents
until July 31, 1997, the date that he says he contacted an EEO Counselor
about the matter. In its final agency decision, the agency dismissed
appellant's claim on the grounds that he had not timely contacted an EEO
Counselor about the alleged discrimination because more than 45 days had
elapsed between April 7, 1997 and July 31, 1997. 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 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).
In his appeal, appellant claims that he did not reasonably suspect that he
was suspended for discriminatory reasons until he discovered information
at a step 2 grievance meeting held on July 31, 1997. His appeal states
that he requested counseling for events that happened "that same day
7/31/97" because that was "when he first felt the discipline he had
received and the information being denied his representative was being
done for discriminatory reasons." Appellant claims to have developed
his reasonable suspicion on July 31, 1997, and to have raised this issue
with the EEO Counselor during the counseling sessions, and that therefore
his contact with the counselor is timely.
According to documents provided by the agency, however, appellant's
first contact with an EEO Counselor came in the form of a handwritten
letter requesting counseling. This letter was received by the Northern
CA EEO Complaints Processing Center on July 31, 1997, the date appellant
is claiming he first contacted an EEO Counselor, but the postmark on
the envelope indicates that he mailed it on July 29, 1997 (the date
on the actual letter is illegible). Therefore, the appellant had not
yet received the information that aroused his "reasonable suspicion"
at the time he decided to contact the EEO Counselor. Appellant's July
1997 handwritten letter requesting counseling and his EEO Request for
Counseling form, received by the EEO Counselor on August 27, 1997, each
seem to characterize the appellant's complaint as two separate issues:
(1)the suspension, and (2) the refusal to provide requested documents;
neither specify a date for the discriminatory event.
Appellant's formal complaint of discrimination re-characterizes the
discrimination to encompass only the denial of information requests,
and specifies the date of the discriminatory event as July 31, 1997.
He also alludes to "actions taken against me on or about July 17, 1997
by USPS management" but no further information is provided about this
in his complaint or appeal.
Appellant's representative, in his statement supporting the appeal of
the agency's decision, claims three areas of discrimination: "1.) the
denial of info[r]mation on 7/31/97; 2.) the disciplinary action; and
3.) the reprisal."
On the issue of the denial of information requests, we find that this
allegation constitutes a collateral attack on the grievance process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman
v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS,
EEOC Request No. 05930106 (June 24, 1993). The proper forum for appellant
to raise challenges to actions which occurred during the grievance
process was in that process itself, which it seems from appellant's
statement in support of his appeal that he did. Therefore, appellant
has failed to state a claim under 29 C.F.R. §1614.107(a).
On the issue of the suspension, we find that the agency properly
dismissed the complaint for untimely contact with an EEO Counselor
as more than 45 days elapsed between the April 4, 1997 Notice of
Suspension and the initial letter to the EEO counselor sent on July
29, 1997. The appellant claimed that he did not have reasonable
suspicion that he had been discriminated against until July 31, 1997.
The Commission finds, however, that the appellant should have known,
or should have suspected, that discrimination was behind the Notice
of Suspension upon its issuance. This is true in light of appellant's
statement on his EEO Request for Counseling Form, dated August 24, 1997,
that he was alleging retaliation "because all of them [his supervisors]
have been involved with the continuing discrimination against me since
[my] 1990 EEO complaint." If there were continuing discrimination,
as he claimed, then the issuance of the Notice of Suspension should
have aroused appellant's suspicion, and he was then obligated to go
to an EEO Counselor within 45 days. Additionally, appellant made his
initial EEO contact through the letter he sent requesting counseling,
which was postmarked July 29, 1997. This conflicts with his claim that he
received information arousing his reasonable suspicion on July 31, 1997.
Therefore, appellant's contact with an EEO Counselor was untimely with
respect to the Notice of Suspension, under 29 C.F.R. §1614.107(b).
Accordingly, for the reasons stated above, the decision of the agency
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:
Mar 2, 1999
______________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations | [
"Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988)",
"Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29, 1990)",
"Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994)",
"Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993)"
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463 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01991839.txt | 01991839.txt | TXT | text/plain | 14,010 | Roosevelt Mitchell v. Department of the Army 01991839 February 12, 2002 . Roosevelt Mitchell, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency. | February 12, 2002 | Appeal Number: 01991839
Legal Analysis:
the Commission that claims (3),
(4), and (5) were properly dismissed by the agency on the grounds that
they have already been decided by the agency. When complainant sought
EEO counseling on July 8, 1997, and August 6, 1997, he complained about
racial jokes and racial remarks made in his presence to provoke a reaction
from him. A review of claims (3) and (4) persuades the Commission that
they concern racial jokes or comments made in complainant's presence.
A review of claim (5) shows that this is the same claim raised by
complainant with the EEO Counselor on July 8, 1997, and August 6, 1997.
After being issued the notice of the right to file a formal complaint,
complainant failed to do so and his informal case was closed by the
agency on December 31, 1997. The Commission has consistently held that
by withdrawing a claim from EEO counseling, and expressly waiving the
right to further the administrative process, a complainant forfeits his
right to subsequently file a complaint on the same claim. See Puissegur
v. USPS, EEOC Request No. 05920650 (April 15, 1993). Based on the
foregoing, we find that the issues raised in claims (3), (4), and
(5) had already been raised by complainant and decided by the agency.
Final Decision:
Accordingly, the dismissal of these claims was appropriate.<2> Moreover, we note that while the agency dismissed claim (1) for not undergoing EEO counseling, we find that claim (1) is more properly addressed in terms of whether it addresses the same matter already raised by complainant. We find that the dismissal of claim (1) is proper, for the reasons set forth above in our discussion of claims (3), (4), and (5). Claims 2 and 8 We find that the dismissal of claims (2), and (8) was proper. A review of the EEO Counselor's report shows that the issues raised on claims (2) and (8) were not brought to the attention of the EEO Counselor. Moreover, these issues were not like or related to the issues addressed with the EEO Counselor. Claim 6 The EEO Counselor's Report reflects that the issue raised on claim (6) was brought to the attention of the EEO Counselor when complainant stated that he was constantly talked down by the captain and his coworkers. Therefore, its dismissal on the grounds that it was not brought to the attention of the EEO Counselor was not supported by the record and was improper. Claim 7 Finally, in her report, the EEO Counselor addressed complainant's concern with the supervisor's tendency to micro-manage his work. The report shows that one of the supervisors who was interviewed by the EEO Counselor, specifically stated that complainant's work was micro-managed for whatever reasons. Based on the foregoing, we find that claim (7) was improperly dismissed. The record shows that this issue was in fact addressed by the inquiry of complainant's informal complaint. In conclusion, the Commission determines that the dismissal of claims (1), (2), (3), (4), (5), and (8) was proper and is hereby AFFIRMED. | Roosevelt Mitchell v. Department of the Army
01991839
February 12, 2002
.
Roosevelt Mitchell,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01991839
Agency No. ANBKFO9902J0020
DECISION
A review of the record shows that on July 8, 1997, and August 6, 1997,
complainant sought EEO counseling claiming that he had been discriminated
against on the bases of race and sex by the following actions: (1)
he was not allowed to work on the computer; (2) his captain talked to
him in a manner that he could not get used to; (3) he was issued a low
performance appraisal; (4) racial jokes were made in his presence to see
what kind of reaction complainant would have; and (5) the captain asked
him why he looked like he could kill someone. On November 18, 1997,
complainant was issued the notice of the right to file a formal complaint
and was advised that if he wished to file a complaint he needed to do
so within 15 days of his receipt of the notice. Complainant failed to
file a formal complaint within the 15-day time limit, and his case was
closed on December 31, 1997.
On December 11, 1997, complainant sought EEO counseling claiming that he
had been discriminated against on the bases of race and reprisal when:
(1) he received a low performance rating in December 1997; (2) he was
subject to harassment in reprisal for seeking EEO counseling in July
1997. During the EEO counselor's inquiry of his informal complaint,
complainant stated that the captain and his coworkers talked down
to him. Complainant further claimed that those around him engaged
in racial comments, displays, and jokes which forced him to avoid
their presence. The EEO Counselor's Report reflects that one of the
issues addressed during the inquiry was complainant's concern with the
micro-management of his work.
Subsequently, complainant filed a formal complaint of discrimination
claiming that the problems he encountered at the [agency] began three
days after he became employed. Complainant specifically claimed that
he was discriminated against on the bases of race, sex, reprisal, and
age<1> when:
(1) on June 15, 1995, he was told that the fire department needed a
black man for his weak mind and strong back;
(2) on June 15, 1995, another driver slept through an alarm and
complainant was blamed and told that he could lose his job;
(3) on March 12, 1997, complainant was told he looked like a mule eating
saubruer and that he needed thick skin;
(4) on March 12, 1997, he was told by coworkers shoot the black b------;
(5) on March 12, 1997, a captain told complainant that he was tired
of your s--- and you black b---- look like you are going to kill someone;
(6) from May 28, 1995 to December 19, 1997, he was talked down by
supervisors and coworkers;
(7) from May 28, 1995 to December 19, 1997, complainant was micro-managed
while his coworkers were under little supervision; and
(8) from May 28, 1995 to December 19, 1997, complainant was threatened
by police officers that visited his coworkers.
The agency issued a decision dismissing the complaint in its entirety.
Claims (1), (2), (6), (7), and (8) were dismissed for complainant's
failure to bring them to the attention of the EEO counselor. Claims (3),
(4), and (5) were dismissed on the grounds that they had already been
decided by the agency and on the alternative grounds of untimely EEO
Counselor contact.
Claims 1, 3, 4, and 5
A review of the record persuades the Commission that claims (3),
(4), and (5) were properly dismissed by the agency on the grounds that
they have already been decided by the agency. When complainant sought
EEO counseling on July 8, 1997, and August 6, 1997, he complained about
racial jokes and racial remarks made in his presence to provoke a reaction
from him. A review of claims (3) and (4) persuades the Commission that
they concern racial jokes or comments made in complainant's presence.
A review of claim (5) shows that this is the same claim raised by
complainant with the EEO Counselor on July 8, 1997, and August 6, 1997.
After being issued the notice of the right to file a formal complaint,
complainant failed to do so and his informal case was closed by the
agency on December 31, 1997. The Commission has consistently held that
by withdrawing a claim from EEO counseling, and expressly waiving the
right to further the administrative process, a complainant forfeits his
right to subsequently file a complaint on the same claim. See Puissegur
v. USPS, EEOC Request No. 05920650 (April 15, 1993). Based on the
foregoing, we find that the issues raised in claims (3), (4), and
(5) had already been raised by complainant and decided by the agency.
Accordingly, the dismissal of these claims was appropriate.<2>
Moreover, we note that while the agency dismissed claim (1) for not
undergoing EEO counseling, we find that claim (1) is more properly
addressed in terms of whether it addresses the same matter already raised
by complainant. We find that the dismissal of claim (1) is proper, for
the reasons set forth above in our discussion of claims (3), (4), and (5).
Claims 2 and 8
We find that the dismissal of claims (2), and (8) was proper. A review
of the EEO Counselor's report shows that the issues raised on claims
(2) and (8) were not brought to the attention of the EEO Counselor.
Moreover, these issues were not like or related to the issues addressed
with the EEO Counselor.
Claim 6
The EEO Counselor's Report reflects that the issue raised on claim (6)
was brought to the attention of the EEO Counselor when complainant stated
that he was constantly talked down by the captain and his coworkers.
Therefore, its dismissal on the grounds that it was not brought to
the attention of the EEO Counselor was not supported by the record and
was improper.
Claim 7
Finally, in her report, the EEO Counselor addressed complainant's
concern with the supervisor's tendency to micro-manage his work.
The report shows that one of the supervisors who was interviewed by
the EEO Counselor, specifically stated that complainant's work was
micro-managed for whatever reasons. Based on the foregoing, we find
that claim (7) was improperly dismissed. The record shows that this issue
was in fact addressed by the inquiry of complainant's informal complaint.
In conclusion, the Commission determines that the dismissal of claims
(1), (2), (3), (4), (5), and (8) was proper and is hereby AFFIRMED.
The dismissal of claims (6), and (7) was not proper and is hereby
REVERSED. Claims (6), and (7) are hereby REMANDED for further processing
in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (6) and (7))
in accordance with 29 C.F.R. § 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 12, 2002
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
______________________________
1 The record shows that complainant was thirty (30) years old at the time
he filed the complaint. Therefore, because he was not at least forty
(40) years old at the time of the alleged incidents, he is not entitled
to the protections of the Age Discrimination in Employment Act (ADEA)
(29 USC 621 et seq).
2 Based on our finding, we need not address the agency's alternate
grounds for dismissal (untimely EEO Counselor contact).
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464 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120064874.txt | 0120064874.txt | TXT | text/plain | 11,109 | Jimmy W. Jones, Sr., Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency. | August 11, 2006 | Appeal Number: 01200648741
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 11, 2006, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq.
Legal Analysis:
Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107.
During the relevant period, complainant was employed as a Supervisory
Equal Opportunity Specialist/Assistant District Director2 at a Missouri
District Office of the agency. In a memorandum dated October 20,
2005 to his immediate supervisor (S1), complainant alleged that the
agency discriminated against him on the basis of reprisal for prior
protected EEO activity when S1 issued him a Counseling Memorandum dated
the same day. Complainant explained that S1 retaliated against him with
a Counseling Memorandum because, on September 14, 2005, he complained to
her supervisors, (S2) and (S3), about S1 supervising him with threats and
intimidation. On October 24, 2005, complainant forwarded his concerns
to S2 per S1's instruction as to the personnel administrative process.
Complainant resigned effective October 28, 2005, citing S1's alleged
reprisal against him as the reason. On a formal complaint form dated
April 18, 2006, complainant alleged that the agency discriminated against
him based on race (Caucasian), sex (male), disability (status as 50%
service-connected disabled veteran) and retaliation when S1 harassed
and constructively discharged him and, following his resignation, gave
unfavorable job references regarding him. The agency EEO Counselor
(EC1), in her report, indicated that complainant initiated EEO contact
on April 17, 2006 regarding his concerns. Complainant stated that, on
October 19, 2005, he told EC1 that he was filing an EEO complaint and
that, when he visited her office again on October 24, 2005, she was away
from the office.
On a formal complaint form dated May 24, 2006, complainant alleged that
the agency discriminated against him based on race, sex, disability and
retaliation because S1 arrived unannounced at his facility and reopened
a closed investigation by one of his employees. In a letter dated July
18, 2006, complainant alleged that the agency discriminated against
him based on race, sex, disability and retaliation when an Assistant
Secretary (S4) failed to properly process his internal complaints and
forced consolidation of his internal complaints with his EEO complaints.
The agency consolidated complainant's complaints for processing.
In its August 11, 2006 final decision, the agency dismissed complainant's
claim of harassment and constructive discharge for initiating EEO
contact in an untimely manner. It reasoned that, assuming complainant
initiated contact with EC1 on October 19, he did not express an intent
to start the EEO process and failed to act with due diligence by waiting
to April 2006 to contact EC1 again. Further, as to complainant's claim
of improper processing of his complaints by S4, the agency dismissed the
claim for failure to state a claim. Complainant filed the instant appeal.
On appeal, complainant reiterated his contention that he initiated contact
with EC1 on October 19, 2005 and added that EC1 strongly suggested that
he think about whether he wanted to file an EEO complaint. Complainant
stated that EC1 did not provide him with the appropriate form and he did
not receive the appropriate form until he contacted his congressman for
assistance with the matter.
In pertinent part, the EEOC Regulation found at 29 C.F.R. § 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. § 1614.105. EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of an EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action. 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 (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 the instant matter, complainant was a Supervisory Equal Opportunity
Specialist/Assistant District Director and indicated that he has
experience as a Federal Sector EEO Investigator. Complainant stated
that he informed an agency EEO Counselor, EC1, that he filed a formal EEO
complaint and she dissuaded him from doing so and failed to give him the
appropriate form, so, the next day, he sent his formal complaint to the
responsible management official. Complainant added that he did not submit
the pre-complaint form to the EEO Counselor until after he contacted
his congressional representative and received the appropriate form.
The EEO Counselor indicated that complainant initiated EEO contact on
April 18, 2006 for actions that allegedly began in October 2005.
Based on the above, we agree with the agency that complainant initiated
contact with an EEO Counselor in an untimely manner and failed to provide
adequate justification to extend the time-frame. We note that complainant
failed to show that he contacted an agency official logically connected
to the EEO process and exhibited an intent to begin the EEO process.
Allen v. U. S. Postal Service, EEOC Request No. 05950933 (July 9, 1996).
Further, the Commission finds that complainant's claim of improper
processing by S4 was properly dismissed for failure to state a claim and
for raising a matter that alleges dissatisfaction with the processing of a
previously filed complaint. See 29 C.F.R. §§ 1614.107(a)(1) and (a)(8).
After a careful review of the record, the Commission AFFIRMS the agency's
final decision dismissing complainant's complaint. | Jimmy W. Jones, Sr.,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01200648741
Agency No. CRC-06-07-080
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 11, 2006, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107.
During the relevant period, complainant was employed as a Supervisory
Equal Opportunity Specialist/Assistant District Director2 at a Missouri
District Office of the agency. In a memorandum dated October 20,
2005 to his immediate supervisor (S1), complainant alleged that the
agency discriminated against him on the basis of reprisal for prior
protected EEO activity when S1 issued him a Counseling Memorandum dated
the same day. Complainant explained that S1 retaliated against him with
a Counseling Memorandum because, on September 14, 2005, he complained to
her supervisors, (S2) and (S3), about S1 supervising him with threats and
intimidation. On October 24, 2005, complainant forwarded his concerns
to S2 per S1's instruction as to the personnel administrative process.
Complainant resigned effective October 28, 2005, citing S1's alleged
reprisal against him as the reason. On a formal complaint form dated
April 18, 2006, complainant alleged that the agency discriminated against
him based on race (Caucasian), sex (male), disability (status as 50%
service-connected disabled veteran) and retaliation when S1 harassed
and constructively discharged him and, following his resignation, gave
unfavorable job references regarding him. The agency EEO Counselor
(EC1), in her report, indicated that complainant initiated EEO contact
on April 17, 2006 regarding his concerns. Complainant stated that, on
October 19, 2005, he told EC1 that he was filing an EEO complaint and
that, when he visited her office again on October 24, 2005, she was away
from the office.
On a formal complaint form dated May 24, 2006, complainant alleged that
the agency discriminated against him based on race, sex, disability and
retaliation because S1 arrived unannounced at his facility and reopened
a closed investigation by one of his employees. In a letter dated July
18, 2006, complainant alleged that the agency discriminated against
him based on race, sex, disability and retaliation when an Assistant
Secretary (S4) failed to properly process his internal complaints and
forced consolidation of his internal complaints with his EEO complaints.
The agency consolidated complainant's complaints for processing.
In its August 11, 2006 final decision, the agency dismissed complainant's
claim of harassment and constructive discharge for initiating EEO
contact in an untimely manner. It reasoned that, assuming complainant
initiated contact with EC1 on October 19, he did not express an intent
to start the EEO process and failed to act with due diligence by waiting
to April 2006 to contact EC1 again. Further, as to complainant's claim
of improper processing of his complaints by S4, the agency dismissed the
claim for failure to state a claim. Complainant filed the instant appeal.
On appeal, complainant reiterated his contention that he initiated contact
with EC1 on October 19, 2005 and added that EC1 strongly suggested that
he think about whether he wanted to file an EEO complaint. Complainant
stated that EC1 did not provide him with the appropriate form and he did
not receive the appropriate form until he contacted his congressman for
assistance with the matter.
In pertinent part, the EEOC Regulation found at 29 C.F.R. § 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. § 1614.105. EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of an EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action. 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 (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 the instant matter, complainant was a Supervisory Equal Opportunity
Specialist/Assistant District Director and indicated that he has
experience as a Federal Sector EEO Investigator. Complainant stated
that he informed an agency EEO Counselor, EC1, that he filed a formal EEO
complaint and she dissuaded him from doing so and failed to give him the
appropriate form, so, the next day, he sent his formal complaint to the
responsible management official. Complainant added that he did not submit
the pre-complaint form to the EEO Counselor until after he contacted
his congressional representative and received the appropriate form.
The EEO Counselor indicated that complainant initiated EEO contact on
April 18, 2006 for actions that allegedly began in October 2005.
Based on the above, we agree with the agency that complainant initiated
contact with an EEO Counselor in an untimely manner and failed to provide
adequate justification to extend the time-frame. We note that complainant
failed to show that he contacted an agency official logically connected
to the EEO process and exhibited an intent to begin the EEO process.
Allen v. U. S. Postal Service, EEOC Request No. 05950933 (July 9, 1996).
Further, the Commission finds that complainant's claim of improper
processing by S4 was properly dismissed for failure to state a claim and
for raising a matter that alleges dissatisfaction with the processing of a
previously filed complaint. See 29 C.F.R. §§ 1614.107(a)(1) and (a)(8).
After a careful review of the record, the Commission AFFIRMS the agency's
final decision dismissing 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
April 18, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
2 Complainant noted that he worked as an EEO Investigator in the Federal
sector, as a Mediator, and gave presentations on EEO matters.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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465 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120103111.txt | 0120103111.txt | TXT | text/plain | 15,365 | David J. Jorczak, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | June 23, 2010 | Appeal Number: 0120103111
Background:
At the time of events giving rise to this complaint, Complainant,
who is hearing impaired, worked as a Laborer in the 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) and his wife, 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 an EEO complaint alleging that
the Agency discriminated against him on the basis of disability (hearing
impairment) when on April 23, 2009, he was denied reasonable accommodation
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 its decision, 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.
RAC further 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 and that the Agency had a contract with a sign language service
to provide those services, but that the need for an interpreter had to
be communicated in advance because there was no permanent sign language
interpreter on staff. The EEO Technician asserted 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 23, 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 contends that the FAD mischaracterized his
mild-mannered nature as acceptance rather than frustration that no
accommodation was provided or made available. Complainant also 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 Laborer in the 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) and his wife, 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 an EEO complaint alleging that
the Agency discriminated against him on the basis of disability (hearing
impairment) when on April 23, 2009, he was denied reasonable accommodation
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 | 
David J. Jorczak,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103111
Agency No. 09-40085-01914
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 Laborer in the 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) and his wife, 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 an EEO complaint alleging that
the Agency discriminated against him on the basis of disability (hearing
impairment) when on April 23, 2009, he was denied reasonable accommodation
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 its decision, 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.
RAC further 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 and that the Agency had a contract with a sign language service
to provide those services, but that the need for an interpreter had to
be communicated in advance because there was no permanent sign language
interpreter on staff. The EEO Technician asserted 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 23, 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 contends that the FAD mischaracterized his
mild-mannered nature as acceptance rather than frustration that no
accommodation was provided or made available. Complainant also 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. Reasonable accommodation includes modifications to the manner in
which a position is customarily performed in order to enable a qualified
individual with a disability to perform the essential job functions.
EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act (Oct. 17,
2002) (Reasonable Accommodation Guidance). 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. Complainant had previously
been informed that an interpreter could be provided for such matters if
he notified the Agency in advance. Additionally, Complainant conceded
that he knew before visiting the EEO Office that there was no full-time
interpreter available.
The Commission finds that there is no evidence in the record that the
Agency was unwilling to provide Complainant an interpreter within
a reasonable time. Particularly, the record indicates that during
Complainantâs visit, he and CW1 were informed that an interpreter could
be provided 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 Agencyâs final decision
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 12, 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.
------------------------------------------------------------
------------------------------------------------------------
| [
"Feris v. Envtl. Prot. Agency, EEOC Appeal No. 01934828 (Aug. 10, 1995)",
"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)"
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466 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102094.txt | 0120102094.txt | TXT | text/plain | 16,124 | Wilford J. Mitchell, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | April 8, 2010 | Appeal Number: 0120102094
Complaint Allegations:
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Black), sex (male), disability, and in reprisal for prior protected EEO activity when: 1. On November 17, 2007, Complainant's Supervisor told him, "I should have just sent you home early because you are not worth a s-it here;" 2. On November 16, 2007, his Supervisor told Complainant, "By kicking it with [a co-worker], you are just shortening your career here;" 3. On January 17, 2008, his Supervisor called Complainant a "bitch" during an argument over rework; 4. his Supervisor never told Complainant that he was coming to work late, and when Complainant tried to submit a leave slip, rejected it as leave abuse; 5. On June 12, 2008, his supervisor counseled Complainant for being tardy, and on October 15, 2008, suspended him for being Absent without leave (AWOL). Further, his Supervisor denied Complainant leave under the Family Medical Leave Act (FMLA); 6. On January 17, 2008, Complainant was suspended for two days for being away from work without leave; 7. On June 28, 2008, Complainant's request for safety gear was denied, and his Supervisor told him that if he had a problem, he should "write to Congress;" 8. On March 24, 2009, his Supervisor stated while assigning work on a Turret gun, "You never know, that might be the Turret to shoot Obama . . . . Oops, I mean Osama;" 9. While Complainant was on light duty for an off-duty injury in May 2009, his Supervisor made him come in and check in every day, while a female employee who was also on light duty was not required to do so; and, 10. On June 25, 2009, Complainant's appointment as a term employee was not extended or renewed. In its final decision, the Agency dismissed Complainant's complaint on the grounds that it was initiated by untimely EEO counselor contact. The Agency also alternatively dismissed claims 1 - 4 on the grounds that Complainant filed a grievance on the same matters. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency improperly dismissed his Complaint. Complainant maintains that although the final decision stated that he learned about EEO time limits at mandatory training sessions from June 1, 2009 to August 1, 2009, he did not attend those sessions because he was on light duty in another. Complainant further contends that he initiated EEO counselor contact on October 29, 2009, when he called and left a message with the EEO office. Complainant maintains that no one returned his message, so he called the office again on December 16, 2009. Further, Complainant contends that claim 4 was not part of his grievance and should not have been dismissed for stating the same claim raised in a negotiated grievance procedure.
Background:
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Black), sex (male), disability, and in reprisal for prior protected EEO activity when:
1. On November 17, 2007, Complainant's Supervisor told him, "I should have just sent you home early because you are not worth a s-it here;"
2. On November 16, 2007, his Supervisor told Complainant, "By kicking it with [a co-worker], you are just shortening your career here;"
3. On January 17, 2008, his Supervisor called Complainant a "bitch" during an argument over rework;
4. his Supervisor never told Complainant that he was coming to work late, and when Complainant tried to submit a leave slip, rejected it as leave abuse;
5. On June 12, 2008, his supervisor counseled Complainant for being tardy, and on October 15, 2008, suspended him for being Absent without leave (AWOL). Further, his Supervisor denied Complainant leave under the Family Medical Leave Act (FMLA);
6. On January 17, 2008, Complainant was suspended for two days for being away from work without leave;
7. On June 28, 2008, Complainant's request for safety gear was denied, and his Supervisor told him that if he had a problem, he should "write to Congress;"
8. On March 24, 2009, his Supervisor stated while assigning work on a Turret gun, "You never know, that might be the Turret to shoot Obama . . . . Oops, I mean Osama;"
9. While Complainant was on light duty for an off-duty injury in May 2009, his Supervisor made him come in and check in every day, while a female employee who was also on light duty was not required to do so; and,
10. On June 25, 2009, Complainant's appointment as a term employee was not extended or renewed.
In its final decision, the Agency dismissed Complainant's complaint on the grounds that it was initiated by untimely EEO counselor contact. The Agency also alternatively dismissed claims 1 - 4 on the grounds that Complainant filed a grievance on the same matters.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly dismissed his Complaint. Complainant maintains that although the final decision stated that he learned about EEO time limits at mandatory training sessions from June 1, 2009 to August 1, 2009, he did not attend those sessions because he was on light duty in another. Complainant further contends that he initiated EEO counselor contact on October 29, 2009, when he called and left a message with the EEO office. Complainant maintains that no one returned his message, so he called the office again on December 16, 2009. Further, Complainant contends that claim 4 was not part of his grievance and should not have been dismissed for stating the same claim raised in a negotiated grievance procedure.
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. Dep't of the Navy, EEOC Request No. 05970852 (February 11, 1999).
In this case, the alleged events in Complainant's complaint occurred from November 17, 2007 until June 25, 2009. Complainant contends that he initiated EEO counselor contact on October 29, but the Counselor failed to return his call. We note that in the Counselor's Report, the counselor noted that Complainant provided her with a copy of his telephone bill, which reflected that Complainant had contacted the EEO office on October 29, 2009. Thus, we find Complainant's assertion to be credible and find that he initiated EEO Counselor contact on October 29, 2009.
However, even October 29, 2009 was more than 45 days after the alleged events in Complainant's complaint. On appeal, Complainant suggests that he did not know about EEO time limits, because he was on light duty in another shop during EEO training sessions in the Summer of 2009. Complainant maintains that he went on light duty on May 4, 2009, and as soon as he learned of the time limits, immediately contacted an EEO counselor on October 29, 2009.
In response, the Agency provided a copy of an email from Complainant's Supervisor in which he claimed that there were two training sessions from June 2009 to August 2009, in which Complainant learned the EEO time limits. The Supervisor further maintained that there was an EEO notice posted on the board in the work facility. However, we note that Complainant maintains that he did not attend the training sessions or see any purported notices because he was on light duty at another facility. We note that the record contains email statements from an Agency official to the EEO counselor in which the official stated that there was no record of Complainant attending EEO training. Further, we do not find that an unsworn statement from Complainant's Supervisor, who is the alleged responsible management official in this case, is persuasive evidence that Complainant had constructive or actual knowledge of EEO time limits. Heather L. Smith v. U.S. Postal Serv., EEO Appeal No. 0120091239 (June 19, 2009) (Commission held that affidavit regarding constructive notice of time limits from the supervisor who allegedly discriminated against a Complainant is of questionable probative value).
The record also contains a copy of an EEO notice and a January 30, 2007 EEO statement from the Commander. However, the Agency has not provided a sworn statement from an Agency official attesting that this notice was posted in the shop or facility that Complainant actually worked during the relevant time period. Thus, we find that there is insufficient evidence in the record to establish that Complainant had actual or constructive notice of the time limit for contacting an EEO Counselor. We note that when there is an issue of timeliness, the "Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Kelly v. U.S. Postal Serv., EEOC Request No. 05A00985 (Sep. 26, 2002) (quoting Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the Agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Defense. EEOC Request No. 05910837 (January 31, 1992).
Consequently, we find that the Agency improperly dismissed Complainant's complaint on the grounds that it was initiated by untimely EEO counselor contact.
Grievance Election
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.
In this case, the record reveals that Complainant filed a grievance regarding claims 1 - 3 on February 7, 2008. Complainant filed the instant EEO complaint on March 4, 2010. The Agency's Master Labor Agreement states that employees may allege discrimination in the EEO process or within the negotiated grievance procedure, but not both. Thus, we find that the Agency properly dismissed claims 1 -3 for stating the same claim raised in a negotiated grievance procedure.
Finally, we note that Complainant's grievance does not contain the claim that the Supervisor rejected Complainant's leave slip submission as leave abuse (claim 4). Therefore, we find that the Agency improperly dismissed claim 4. | Wilford J. Mitchell,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120102094
Agency No. 106710101296
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 8, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Black), sex (male), disability, and in reprisal for prior protected EEO activity when:
1. On November 17, 2007, Complainant's Supervisor told him, "I should have just sent you home early because you are not worth a s-it here;"
2. On November 16, 2007, his Supervisor told Complainant, "By kicking it with [a co-worker], you are just shortening your career here;"
3. On January 17, 2008, his Supervisor called Complainant a "bitch" during an argument over rework;
4. his Supervisor never told Complainant that he was coming to work late, and when Complainant tried to submit a leave slip, rejected it as leave abuse;
5. On June 12, 2008, his supervisor counseled Complainant for being tardy, and on October 15, 2008, suspended him for being Absent without leave (AWOL). Further, his Supervisor denied Complainant leave under the Family Medical Leave Act (FMLA);
6. On January 17, 2008, Complainant was suspended for two days for being away from work without leave;
7. On June 28, 2008, Complainant's request for safety gear was denied, and his Supervisor told him that if he had a problem, he should "write to Congress;"
8. On March 24, 2009, his Supervisor stated while assigning work on a Turret gun, "You never know, that might be the Turret to shoot Obama . . . . Oops, I mean Osama;"
9. While Complainant was on light duty for an off-duty injury in May 2009, his Supervisor made him come in and check in every day, while a female employee who was also on light duty was not required to do so; and,
10. On June 25, 2009, Complainant's appointment as a term employee was not extended or renewed.
In its final decision, the Agency dismissed Complainant's complaint on the grounds that it was initiated by untimely EEO counselor contact. The Agency also alternatively dismissed claims 1 - 4 on the grounds that Complainant filed a grievance on the same matters.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly dismissed his Complaint. Complainant maintains that although the final decision stated that he learned about EEO time limits at mandatory training sessions from June 1, 2009 to August 1, 2009, he did not attend those sessions because he was on light duty in another. Complainant further contends that he initiated EEO counselor contact on October 29, 2009, when he called and left a message with the EEO office. Complainant maintains that no one returned his message, so he called the office again on December 16, 2009. Further, Complainant contends that claim 4 was not part of his grievance and should not have been dismissed for stating the same claim raised in a negotiated grievance procedure.
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. Dep't of the Navy, EEOC Request No. 05970852 (February 11, 1999).
In this case, the alleged events in Complainant's complaint occurred from November 17, 2007 until June 25, 2009. Complainant contends that he initiated EEO counselor contact on October 29, but the Counselor failed to return his call. We note that in the Counselor's Report, the counselor noted that Complainant provided her with a copy of his telephone bill, which reflected that Complainant had contacted the EEO office on October 29, 2009. Thus, we find Complainant's assertion to be credible and find that he initiated EEO Counselor contact on October 29, 2009.
However, even October 29, 2009 was more than 45 days after the alleged events in Complainant's complaint. On appeal, Complainant suggests that he did not know about EEO time limits, because he was on light duty in another shop during EEO training sessions in the Summer of 2009. Complainant maintains that he went on light duty on May 4, 2009, and as soon as he learned of the time limits, immediately contacted an EEO counselor on October 29, 2009.
In response, the Agency provided a copy of an email from Complainant's Supervisor in which he claimed that there were two training sessions from June 2009 to August 2009, in which Complainant learned the EEO time limits. The Supervisor further maintained that there was an EEO notice posted on the board in the work facility. However, we note that Complainant maintains that he did not attend the training sessions or see any purported notices because he was on light duty at another facility. We note that the record contains email statements from an Agency official to the EEO counselor in which the official stated that there was no record of Complainant attending EEO training. Further, we do not find that an unsworn statement from Complainant's Supervisor, who is the alleged responsible management official in this case, is persuasive evidence that Complainant had constructive or actual knowledge of EEO time limits. Heather L. Smith v. U.S. Postal Serv., EEO Appeal No. 0120091239 (June 19, 2009) (Commission held that affidavit regarding constructive notice of time limits from the supervisor who allegedly discriminated against a Complainant is of questionable probative value).
The record also contains a copy of an EEO notice and a January 30, 2007 EEO statement from the Commander. However, the Agency has not provided a sworn statement from an Agency official attesting that this notice was posted in the shop or facility that Complainant actually worked during the relevant time period. Thus, we find that there is insufficient evidence in the record to establish that Complainant had actual or constructive notice of the time limit for contacting an EEO Counselor. We note that when there is an issue of timeliness, the "Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Kelly v. U.S. Postal Serv., EEOC Request No. 05A00985 (Sep. 26, 2002) (quoting Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the Agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Defense. EEOC Request No. 05910837 (January 31, 1992).
Consequently, we find that the Agency improperly dismissed Complainant's complaint on the grounds that it was initiated by untimely EEO counselor contact.
Grievance Election
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.
In this case, the record reveals that Complainant filed a grievance regarding claims 1 - 3 on February 7, 2008. Complainant filed the instant EEO complaint on March 4, 2010. The Agency's Master Labor Agreement states that employees may allege discrimination in the EEO process or within the negotiated grievance procedure, but not both. Thus, we find that the Agency properly dismissed claims 1 -3 for stating the same claim raised in a negotiated grievance procedure.
Finally, we note that Complainant's grievance does not contain the claim that the Supervisor rejected Complainant's leave slip submission as leave abuse (claim 4). Therefore, we find that the Agency improperly dismissed claim 4.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency's dismissal of claims 1- 3 for the reasons set forth in this decision. The Commission REVERSES the Agency's dismissal of claims 4 - 10 and REMANDS these claims to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 4 - 10 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 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
__8/16/10________________
Date
| [
"Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)",
"Ericson v. Dep't of the Army, EEOC Request No. 05920623 (January 14, 1993)",
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"29 C.F.R. § 1614.301(a)",
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467 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01986021.txt | 01986021.txt | TXT | text/plain | 14,261 | August 20, 1999 | 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 v. United States Postal Service
01986021
August 20, 1999
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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468 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983924_r.txt | 01983924_r.txt | TXT | text/plain | 15,261 | April 17, 1998 | Appeal Number: 01983924
Complaint Allegations:
In his complaint, appellant clearly alleged that he was subjected to reprisal for his prior protected activity when he was transferred to a position for which he had no training. Accordingly, to the extent that appellant is alleging that he was transferred as an act of reprisal, he is aggrieved since a transfer affects a term, condition, or privilege of employment. Accordingly, the agency's dismissal of allegation 6, as defined herein, was improper. Consistent with our discussion herein, the agency's dismissal of allegations 1 to 5 is AFFIRMED. The agency's dismissal of allegation 6 is REVERSED and allegation 6, as defined herein, is REMANDED to the agency for further processing. ORDER
Case Facts:
On April 17, 1998, appellant filed a timely appeal of a March 23,
1998 final agency decision dismissing allegations 1 to 5 of his
complaint for failure to contact an EEO Counselor in a timely manner
and allegation 6 on the grounds of failure to state a claim, pursuant
to 29 C.F.R. §1614.107(a).
The agency identified the allegations of appellant's February 20, 1998
complaint as whether appellant was discriminated against on the bases
of his age (date of birth: July 2, 1934) and national origin (Spanish)
when: (1) in August 1994, appellant was detailed to an unclassified
duties position; (2) in September 1994, appellant was reassigned to a
position in the Security Department; (3) in October 1993, appellant's
performance evaluation was changed, taking him off the Performance Plan B
(GS/FWS Supervisors) to Performance Plan C (Non-supervisors/Non-managers);
(4) beginning in October 1994 and continuing for at least three years,
appellant was told that he was too old for the position he was reassigned
to and he was referred to as "old man" and "grandpa;" (5) approximately
one to two years ago, appellant suffered repeated insults regarding his
national origin; and (6) appellant was discriminated against on the basis
of reprisal after his attempt to file an EEO complaint in October 1997.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
See 29 C.F.R. §1614.105(a)(1). The time limit may be extended, however,
if the allegation involves a continuing violation. 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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). The Commission has
also consistently held that appellants must act with due diligence in
the pursuit of their claim or the doctrine of laches may be applied.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue an action could bar the claim. See Sapp
v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990).
Legal Analysis:
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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). The Commission has
also consistently held that appellants must act with due diligence in
the pursuit of their claim or the doctrine of laches may be applied.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue an action could bar the claim. See Sapp
v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990).
Upon review, the Commission finds, based on an EEOC Form 5 and an October
14, 1997 Memorandum of the EEO Manager, that appellant first contacted
the EEO office on October 14, 1997, specifically alleging that he was
consistently abused, harassed and discriminated against by an agency
Security Officer; that the Security Officer wanted to transfer him from
his position at Base Security and replace him with a younger employee;
that he was denied the pay his position and responsibilities entitled
him to in violation of the Equal Pay Act and that the Security Officer
retaliated against him because he filed grievances based on discriminatory
acts. The agency asserts that there was no EEO contact in October 1997,
because appellant submitted his complaint on the wrong form and not on the
form specified by the agency. We find, however, that the EEO Manager's
action in refusing to accept the form was improper. The Commission finds
that appellant contacted an EEO official logically connected with the
EEO process in October 1997, with an intent to pursue the allegations of
discrimination identified on the Form 5, but the Form 5 was improperly
rejected by the EEO Manager. See Floyd v. National Guard Bureau, EEOC
Request No. 05890086 (June 22, 1989). There is no requirement in the
regulations that appellant request EEO counseling on a certain form,
only that a complainant indicate an intent to pursue the EEO process.
By bringing the EEOC Form 5 to the attention of the EEO Manager,
appellant put the agency on notice that he intended to pursue the EEO
process. Kemer v. GSA, EEOC Request No. 05910779 (December 30, 1991)
(contact with agency officials alleging discrimination deemed timely
EEO Counselor contact by Commission); Hunnicutt v. Department of the
Navy, EEOC Appeal No. 01966613 (July 23, 1997)(no requirement in the
regulations that appellant request EEO counseling on a certain form).
Nonetheless, the Commission finds that the agency's decision dismissing
allegations 1, 2, 3, and 4 for untimely EEO contact was proper
and appellant does not offer justification sufficient to extend the
time limit. Appellant does not argue that he was unaware of the time
frames for timely Counselor contact. The Commission finds, and the
record reflects, that none of the dismissed allegations occurred within
45 days of either the October 14, 1997 contact or within 45 days of
appellant's subsequent EEO contact on December 19, 1997, as reflected in
the Counselor's Report. Although appellant alleged that prior to the EEO
contacts in October and December 1997, appellant told the Security Officer
that he wanted to file an EEO complaint and the Security Officer told
him that he would obtain the EEO forms, there is no evidence establishing
that the Security Officer was logically connected to the EEO process.
Regarding allegation 5, the Counselor's Report reflects that appellant
alleged that he was referred to as a "spic" and comments were made to
him such as "you know how you people are, you fly off the handle;" and
about having a Latin temper. The Counselor's Report also reflects that
appellant alleged that the comments occurred one or two years ago and the
record reveals that appellant first contacted an EEO Counselor in October
1997, and again on December 19, 1997. The Commission therefore finds
that the contact was untimely. The record does not support a finding
that the alleged conduct was continuing, appellant not having identified
any act of discrimination occurring within 45 days of Counselor contact.
The Commission cautions the agency, however, that it does not condone
or approve of the use of discriminatory language in the workplace.
If sufficiently severe or pervasive, the use of racial epithets or racial
slurs in the workplace may constitute harassment and violate Title VII.
See Yabuki v. Department of the Army, EEOC Request No. 05920778 (June
4, 1993); Brooks v. Department of the Navy, EEOC Request No. 05950484
(June 25, 1996).
Finally, with regard to allegation 6, we find that the agency miss defined
appellant's complaint. In his complaint, appellant clearly alleged that
he was subjected to reprisal for his prior protected activity when he was
transferred to a position for which he had no training.
Final Decision:
Accordingly, to the extent that appellant is alleging that he was transferred as an act of reprisal, he is aggrieved since a transfer affects a term, condition, or privilege of employment. Accordingly, the agency's dismissal of allegation 6, as defined herein, was improper. Consistent with our discussion herein, the agency's dismissal of allegations 1 to 5 is AFFIRMED. | Louis A. Guerra, )
Appellant, )
) Appeal No. 01983924
v. ) Agency No. 98-42237-004
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On April 17, 1998, appellant filed a timely appeal of a March 23,
1998 final agency decision dismissing allegations 1 to 5 of his
complaint for failure to contact an EEO Counselor in a timely manner
and allegation 6 on the grounds of failure to state a claim, pursuant
to 29 C.F.R. §1614.107(a).
The agency identified the allegations of appellant's February 20, 1998
complaint as whether appellant was discriminated against on the bases
of his age (date of birth: July 2, 1934) and national origin (Spanish)
when: (1) in August 1994, appellant was detailed to an unclassified
duties position; (2) in September 1994, appellant was reassigned to a
position in the Security Department; (3) in October 1993, appellant's
performance evaluation was changed, taking him off the Performance Plan B
(GS/FWS Supervisors) to Performance Plan C (Non-supervisors/Non-managers);
(4) beginning in October 1994 and continuing for at least three years,
appellant was told that he was too old for the position he was reassigned
to and he was referred to as "old man" and "grandpa;" (5) approximately
one to two years ago, appellant suffered repeated insults regarding his
national origin; and (6) appellant was discriminated against on the basis
of reprisal after his attempt to file an EEO complaint in October 1997.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
See 29 C.F.R. §1614.105(a)(1). The time limit may be extended, however,
if the allegation involves a continuing violation. 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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). The Commission has
also consistently held that appellants must act with due diligence in
the pursuit of their claim or the doctrine of laches may be applied.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue an action could bar the claim. See Sapp
v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990).
Upon review, the Commission finds, based on an EEOC Form 5 and an October
14, 1997 Memorandum of the EEO Manager, that appellant first contacted
the EEO office on October 14, 1997, specifically alleging that he was
consistently abused, harassed and discriminated against by an agency
Security Officer; that the Security Officer wanted to transfer him from
his position at Base Security and replace him with a younger employee;
that he was denied the pay his position and responsibilities entitled
him to in violation of the Equal Pay Act and that the Security Officer
retaliated against him because he filed grievances based on discriminatory
acts. The agency asserts that there was no EEO contact in October 1997,
because appellant submitted his complaint on the wrong form and not on the
form specified by the agency. We find, however, that the EEO Manager's
action in refusing to accept the form was improper. The Commission finds
that appellant contacted an EEO official logically connected with the
EEO process in October 1997, with an intent to pursue the allegations of
discrimination identified on the Form 5, but the Form 5 was improperly
rejected by the EEO Manager. See Floyd v. National Guard Bureau, EEOC
Request No. 05890086 (June 22, 1989). There is no requirement in the
regulations that appellant request EEO counseling on a certain form,
only that a complainant indicate an intent to pursue the EEO process.
By bringing the EEOC Form 5 to the attention of the EEO Manager,
appellant put the agency on notice that he intended to pursue the EEO
process. Kemer v. GSA, EEOC Request No. 05910779 (December 30, 1991)
(contact with agency officials alleging discrimination deemed timely
EEO Counselor contact by Commission); Hunnicutt v. Department of the
Navy, EEOC Appeal No. 01966613 (July 23, 1997)(no requirement in the
regulations that appellant request EEO counseling on a certain form).
Nonetheless, the Commission finds that the agency's decision dismissing
allegations 1, 2, 3, and 4 for untimely EEO contact was proper
and appellant does not offer justification sufficient to extend the
time limit. Appellant does not argue that he was unaware of the time
frames for timely Counselor contact. The Commission finds, and the
record reflects, that none of the dismissed allegations occurred within
45 days of either the October 14, 1997 contact or within 45 days of
appellant's subsequent EEO contact on December 19, 1997, as reflected in
the Counselor's Report. Although appellant alleged that prior to the EEO
contacts in October and December 1997, appellant told the Security Officer
that he wanted to file an EEO complaint and the Security Officer told
him that he would obtain the EEO forms, there is no evidence establishing
that the Security Officer was logically connected to the EEO process.
Regarding allegation 5, the Counselor's Report reflects that appellant
alleged that he was referred to as a "spic" and comments were made to
him such as "you know how you people are, you fly off the handle;" and
about having a Latin temper. The Counselor's Report also reflects that
appellant alleged that the comments occurred one or two years ago and the
record reveals that appellant first contacted an EEO Counselor in October
1997, and again on December 19, 1997. The Commission therefore finds
that the contact was untimely. The record does not support a finding
that the alleged conduct was continuing, appellant not having identified
any act of discrimination occurring within 45 days of Counselor contact.
The Commission cautions the agency, however, that it does not condone
or approve of the use of discriminatory language in the workplace.
If sufficiently severe or pervasive, the use of racial epithets or racial
slurs in the workplace may constitute harassment and violate Title VII.
See Yabuki v. Department of the Army, EEOC Request No. 05920778 (June
4, 1993); Brooks v. Department of the Navy, EEOC Request No. 05950484
(June 25, 1996).
Finally, with regard to allegation 6, we find that the agency miss defined
appellant's complaint. In his complaint, appellant clearly alleged that
he was subjected to reprisal for his prior protected activity when he was
transferred to a position for which he had no training. Accordingly,
to the extent that appellant is alleging that he was transferred as
an act of reprisal, he is aggrieved since a transfer affects a term,
condition, or privilege of employment. Accordingly, the agency's
dismissal of allegation 6, as defined herein, was improper.
Consistent with our discussion herein, the agency's dismissal of
allegations 1 to 5 is AFFIRMED. The agency's dismissal of allegation
6 is REVERSED and allegation 6, as defined herein, is REMANDED to the
agency for further processing.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
A Civil Action").
FOR THE COMMISSION:
June 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [
"EEO Counselor. See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990)",
"Sapp v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996)",
"Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990)",
"EEO Manager. See Floyd v. National Gu... | [
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469 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983924.txt | 01983924.txt | TXT | text/plain | 15,331 | June 21, 1999 | Appeal Number: 01983924
Complaint Allegations:
In his complaint, appellant clearly alleged that he was subjected to reprisal for his prior protected activity when he was transferred to a position for which he had no training. Accordingly, to the extent that appellant is alleging that he was transferred as an act of reprisal, he is aggrieved since a transfer affects a term, condition, or privilege of employment. Accordingly, the agency's dismissal of allegation 6, as defined herein, was improper. Consistent with our discussion herein, the agency's dismissal of allegations 1 to 5 is AFFIRMED. The agency's dismissal of allegation 6 is REVERSED and allegation 6, as defined herein, is REMANDED to the agency for further processing. ORDER
Case Facts:
On April 17, 1998, appellant filed a timely appeal of a March 23,
1998 final agency decision dismissing allegations 1 to 5 of his
complaint for failure to contact an EEO Counselor in a timely manner
and allegation 6 on the grounds of failure to state a claim, pursuant
to 29 C.F.R. §1614.107(a).
The agency identified the allegations of appellant's February 20, 1998
complaint as whether appellant was discriminated against on the bases
of his age (date of birth: July 2, 1934) and national origin (Spanish)
when: (1) in August 1994, appellant was detailed to an unclassified
duties position; (2) in September 1994, appellant was reassigned to a
position in the Security Department; (3) in October 1993, appellant's
performance evaluation was changed, taking him off the Performance Plan B
(GS/FWS Supervisors) to Performance Plan C (Non-supervisors/Non-managers);
(4) beginning in October 1994 and continuing for at least three years,
appellant was told that he was too old for the position he was reassigned
to and he was referred to as "old man" and "grandpa;" (5) approximately
one to two years ago, appellant suffered repeated insults regarding his
national origin; and (6) appellant was discriminated against on the basis
of reprisal after his attempt to file an EEO complaint in October 1997.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
See 29 C.F.R. §1614.105(a)(1). The time limit may be extended, however,
if the allegation involves a continuing violation. 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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). The Commission has
also consistently held that appellants must act with due diligence in
the pursuit of their claim or the doctrine of laches may be applied.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue an action could bar the claim. See Sapp
v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990).
Legal Analysis:
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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). The Commission has
also consistently held that appellants must act with due diligence in
the pursuit of their claim or the doctrine of laches may be applied.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue an action could bar the claim. See Sapp
v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990).
Upon review, the Commission finds, based on an EEOC Form 5 and an October
14, 1997 Memorandum of the EEO Manager, that appellant first contacted
the EEO office on October 14, 1997, specifically alleging that he was
consistently abused, harassed and discriminated against by an agency
Security Officer; that the Security Officer wanted to transfer him from
his position at Base Security and replace him with a younger employee;
that he was denied the pay his position and responsibilities entitled
him to in violation of the Equal Pay Act and that the Security Officer
retaliated against him because he filed grievances based on discriminatory
acts. The agency asserts that there was no EEO contact in October 1997,
because appellant submitted his complaint on the wrong form and not on the
form specified by the agency. We find, however, that the EEO Manager's
action in refusing to accept the form was improper. The Commission finds
that appellant contacted an EEO official logically connected with the
EEO process in October 1997, with an intent to pursue the allegations of
discrimination identified on the Form 5, but the Form 5 was improperly
rejected by the EEO Manager. See Floyd v. National Guard Bureau, EEOC
Request No. 05890086 (June 22, 1989). There is no requirement in the
regulations that appellant request EEO counseling on a certain form,
only that a complainant indicate an intent to pursue the EEO process.
By bringing the EEOC Form 5 to the attention of the EEO Manager,
appellant put the agency on notice that he intended to pursue the EEO
process. Kemer v. GSA, EEOC Request No. 05910779 (December 30, 1991)
(contact with agency officials alleging discrimination deemed timely
EEO Counselor contact by Commission); Hunnicutt v. Department of the
Navy, EEOC Appeal No. 01966613 (July 23, 1997)(no requirement in the
regulations that appellant request EEO counseling on a certain form).
Nonetheless, the Commission finds that the agency's decision dismissing
allegations 1, 2, 3, and 4 for untimely EEO contact was proper
and appellant does not offer justification sufficient to extend the
time limit. Appellant does not argue that he was unaware of the time
frames for timely Counselor contact. The Commission finds, and the
record reflects, that none of the dismissed allegations occurred within
45 days of either the October 14, 1997 contact or within 45 days of
appellant's subsequent EEO contact on December 19, 1997, as reflected in
the Counselor's Report. Although appellant alleged that prior to the EEO
contacts in October and December 1997, appellant told the Security Officer
that he wanted to file an EEO complaint and the Security Officer told
him that he would obtain the EEO forms, there is no evidence establishing
that the Security Officer was logically connected to the EEO process.
Regarding allegation 5, the Counselor's Report reflects that appellant
alleged that he was referred to as a "spic" and comments were made to
him such as "you know how you people are, you fly off the handle;" and
about having a Latin temper. The Counselor's Report also reflects that
appellant alleged that the comments occurred one or two years ago and the
record reveals that appellant first contacted an EEO Counselor in October
1997, and again on December 19, 1997. The Commission therefore finds
that the contact was untimely. The record does not support a finding
that the alleged conduct was continuing, appellant not having identified
any act of discrimination occurring within 45 days of Counselor contact.
The Commission cautions the agency, however, that it does not condone
or approve of the use of discriminatory language in the workplace.
If sufficiently severe or pervasive, the use of racial epithets or racial
slurs in the workplace may constitute harassment and violate Title VII.
See Yabuki v. Department of the Army, EEOC Request No. 05920778 (June
4, 1993); Brooks v. Department of the Navy, EEOC Request No. 05950484
(June 25, 1996).
Finally, with regard to allegation 6, we find that the agency miss defined
appellant's complaint. In his complaint, appellant clearly alleged that
he was subjected to reprisal for his prior protected activity when he was
transferred to a position for which he had no training.
Final Decision:
Accordingly, to the extent that appellant is alleging that he was transferred as an act of reprisal, he is aggrieved since a transfer affects a term, condition, or privilege of employment. Accordingly, the agency's dismissal of allegation 6, as defined herein, was improper. Consistent with our discussion herein, the agency's dismissal of allegations 1 to 5 is AFFIRMED. | Louis A. Guerra v. Department of the Navy
01983924
June 21, 1999
Louis A. Guerra, )
Appellant, )
) Appeal No. 01983924
v. ) Agency No. 98-42237-004
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On April 17, 1998, appellant filed a timely appeal of a March 23,
1998 final agency decision dismissing allegations 1 to 5 of his
complaint for failure to contact an EEO Counselor in a timely manner
and allegation 6 on the grounds of failure to state a claim, pursuant
to 29 C.F.R. §1614.107(a).
The agency identified the allegations of appellant's February 20, 1998
complaint as whether appellant was discriminated against on the bases
of his age (date of birth: July 2, 1934) and national origin (Spanish)
when: (1) in August 1994, appellant was detailed to an unclassified
duties position; (2) in September 1994, appellant was reassigned to a
position in the Security Department; (3) in October 1993, appellant's
performance evaluation was changed, taking him off the Performance Plan B
(GS/FWS Supervisors) to Performance Plan C (Non-supervisors/Non-managers);
(4) beginning in October 1994 and continuing for at least three years,
appellant was told that he was too old for the position he was reassigned
to and he was referred to as "old man" and "grandpa;" (5) approximately
one to two years ago, appellant suffered repeated insults regarding his
national origin; and (6) appellant was discriminated against on the basis
of reprisal after his attempt to file an EEO complaint in October 1997.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
See 29 C.F.R. §1614.105(a)(1). The time limit may be extended, however,
if the allegation involves a continuing violation. 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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). The Commission has
also consistently held that appellants must act with due diligence in
the pursuit of their claim or the doctrine of laches may be applied.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue an action could bar the claim. See Sapp
v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996); O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990).
Upon review, the Commission finds, based on an EEOC Form 5 and an October
14, 1997 Memorandum of the EEO Manager, that appellant first contacted
the EEO office on October 14, 1997, specifically alleging that he was
consistently abused, harassed and discriminated against by an agency
Security Officer; that the Security Officer wanted to transfer him from
his position at Base Security and replace him with a younger employee;
that he was denied the pay his position and responsibilities entitled
him to in violation of the Equal Pay Act and that the Security Officer
retaliated against him because he filed grievances based on discriminatory
acts. The agency asserts that there was no EEO contact in October 1997,
because appellant submitted his complaint on the wrong form and not on the
form specified by the agency. We find, however, that the EEO Manager's
action in refusing to accept the form was improper. The Commission finds
that appellant contacted an EEO official logically connected with the
EEO process in October 1997, with an intent to pursue the allegations of
discrimination identified on the Form 5, but the Form 5 was improperly
rejected by the EEO Manager. See Floyd v. National Guard Bureau, EEOC
Request No. 05890086 (June 22, 1989). There is no requirement in the
regulations that appellant request EEO counseling on a certain form,
only that a complainant indicate an intent to pursue the EEO process.
By bringing the EEOC Form 5 to the attention of the EEO Manager,
appellant put the agency on notice that he intended to pursue the EEO
process. Kemer v. GSA, EEOC Request No. 05910779 (December 30, 1991)
(contact with agency officials alleging discrimination deemed timely
EEO Counselor contact by Commission); Hunnicutt v. Department of the
Navy, EEOC Appeal No. 01966613 (July 23, 1997)(no requirement in the
regulations that appellant request EEO counseling on a certain form).
Nonetheless, the Commission finds that the agency's decision dismissing
allegations 1, 2, 3, and 4 for untimely EEO contact was proper
and appellant does not offer justification sufficient to extend the
time limit. Appellant does not argue that he was unaware of the time
frames for timely Counselor contact. The Commission finds, and the
record reflects, that none of the dismissed allegations occurred within
45 days of either the October 14, 1997 contact or within 45 days of
appellant's subsequent EEO contact on December 19, 1997, as reflected in
the Counselor's Report. Although appellant alleged that prior to the EEO
contacts in October and December 1997, appellant told the Security Officer
that he wanted to file an EEO complaint and the Security Officer told
him that he would obtain the EEO forms, there is no evidence establishing
that the Security Officer was logically connected to the EEO process.
Regarding allegation 5, the Counselor's Report reflects that appellant
alleged that he was referred to as a "spic" and comments were made to
him such as "you know how you people are, you fly off the handle;" and
about having a Latin temper. The Counselor's Report also reflects that
appellant alleged that the comments occurred one or two years ago and the
record reveals that appellant first contacted an EEO Counselor in October
1997, and again on December 19, 1997. The Commission therefore finds
that the contact was untimely. The record does not support a finding
that the alleged conduct was continuing, appellant not having identified
any act of discrimination occurring within 45 days of Counselor contact.
The Commission cautions the agency, however, that it does not condone
or approve of the use of discriminatory language in the workplace.
If sufficiently severe or pervasive, the use of racial epithets or racial
slurs in the workplace may constitute harassment and violate Title VII.
See Yabuki v. Department of the Army, EEOC Request No. 05920778 (June
4, 1993); Brooks v. Department of the Navy, EEOC Request No. 05950484
(June 25, 1996).
Finally, with regard to allegation 6, we find that the agency miss defined
appellant's complaint. In his complaint, appellant clearly alleged that
he was subjected to reprisal for his prior protected activity when he was
transferred to a position for which he had no training. Accordingly,
to the extent that appellant is alleging that he was transferred as
an act of reprisal, he is aggrieved since a transfer affects a term,
condition, or privilege of employment. Accordingly, the agency's
dismissal of allegation 6, as defined herein, was improper.
Consistent with our discussion herein, the agency's dismissal of
allegations 1 to 5 is AFFIRMED. The agency's dismissal of allegation
6 is REVERSED and allegation 6, as defined herein, is REMANDED to the
agency for further processing.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
June 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations | [
"EEO Counselor. See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990)",
"Sapp v. U.S. Postal Service, EEOC Request No. 05950666 (May 31, 1996)",
"Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990)",
"EEO Manager. See Floyd v. National Gu... | [
-0.0635891854763031,
0.07927976548671722,
-0.010623812675476074,
-0.003745304187759757,
0.09132440388202667,
0.01858568750321865,
0.07842980325222015,
0.10518867522478104,
-0.03449830040335655,
0.08322348445653915,
0.05622928962111473,
0.0004208636237308383,
-0.009099951013922691,
0.083727... | |
470 | https://www.eeoc.gov/sites/default/files/decisions/2024_11_15/2024001859.pdf | 2024001859.pdf | PDF | application/pdf | 14,786 | Archie G,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. | December 18, 2023 | Appeal Number: 2024001859
Background:
At the time of events giving rise to this complaint, Complainant worked as an Installation Fire Chief at the Agency’s Kirtland Air Force Base facility in
Albuquerque, New Mexico. On November 21, 2023, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on
the bases of race (Hispanic),
2 national origin (Mexico), sex (male), disability
(mental and physical ), age ( DOB: 1 957), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 , the Age
Discrimination in Employment Act of 1967 , and Section 501 of th e
Rehabilitation Act of 1973 when:
1. Complainant’s April 2023 performance appraisal referred to “EEO complaints filed by firefighters” and that Complainant’s conduct was
seen as favoritism by the Agency;
2. On August 2, 2023, Complainant’s grievance regarding his 2023
performance appraisal was denied;
3. Sometime before August 14, 2023, an Agency EEO Counselor conducted onsite inquiries with personnel, which had a chilling effect on Complainant’s claim and likely deterred Complainant and others from engaging in protected activity , as well as other incidents of
harassment.
A review of the record reveals that Complainant’s 2023 Performance Appraisal was issued on May 19, 2023 . On May 31, 2023, Complainant filed
a grievance regarding his 2023 Performance Appraisal. On August 2, 2023, the Agency issued its Final Decision denying Complainant’s grievance and considered the 2023 performance appraisal process closed for any further
review. On August 14, 2023, Complainant made initial contact with an EEO Counselor identify ing the Agency’s August 2, 2023, final decision and alleged
associated harassment and offensive work environment, including a possible conflict -of-interest by the Agency’s EEO Director. Complainant alleged that
the Agency’s EEO Director being onsite and inquiring with several personnel had a distinct chilling effect on Complainant’s claims.
2 The Commission notes that the term “ Hispanic” typically denotes national
origin rather tha n race. However, herein the Commission acknowledges
Complainant's self -identification of his race as Hispanic.
In its final decision, the Agency dismissed Complainant’s claims for untimely
contact pursuant to 29 CFR § 1614.107(a)(2), and failure to state a claim
pursuant to 29 CFR § 1614.107(a)(1). The Agency found that Complainant’s
claims lack definitive dates and that the claims regarding Complainant’s 2023 performance evaluation, presumed to occur in April 2023, wer e
untimely as Complainant initiated EEO Contact in August 2023. The Agency
also found that Complainant’s claims lacked specificity and failed to alleged harm or adverse actions. The Agency noted that Complainant listed reprisal as a basis but found no EEO activity on file for Complainant. The Agency also
noted that Complainant failed to identify his racial category and disability
category.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that EEO regulations require complaints of discrimination to be brought to the attention of the EEO Counselor within forty- five (45) days of the effective date of the action , which in this case, he
argues is the date the Agency denied his grievance. Complainant also
contends that he states a claim of ongoing harassment and hostile work
environment.
On appeal, the Agency contends that Complainant’s claims regarding his 2023 performance appraisal are untimely. The Agency also contends that Complaina nt’s harassment /hostile work environment claim lacks specificity
and does not allege any actionable harm.
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 e xamine the record
without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. The Commission
should construe the comp laint 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 made in favor of the complainant.
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.
ISSUE PRESENTED
Whether the agency properly dismissed the complaint of discrimination
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
contact?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Installation Fire Chief at the Agency’s Kirtland Air Force Base facility in
Albuquerque, New Mexico. On November 21, 2023, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on
the bases of race (Hispanic),
2 national origin (Mexico), sex (male), disability
(mental and physical ), age ( DOB: 1 957), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 , the Age
Discrimination in Employment Act of 1967 , and Section 501 of th e
Rehabilitation Act of 1973 when:
1. Complainant’s April 2023 performance appraisal referred to “EEO complaints filed by firefighters” and that Complainant’s conduct was
seen as favoritism by the Agency;
2. On August 2, 2023, Complainant’s grievance regarding his 2023
performance appraisal was denied;
3. Sometime before August 14, 2023, an Agency EEO Counselor conducted onsite inquiries with personnel, which had a chilling effect on Complainant’s claim and likely deterred Complainant and others from engaging in protected activity , as well as other incidents of
harassment.
A review of the record reveals that Complainant’s 2023 Performance Appraisal was issued on May 19, 2023 . On May 31, 2023, Complainant filed
a grievance regarding his 2023 Performance Appraisal. On August 2, 2023, the Agency issued its Final Decision denying Complainant’s grievance and considered the 2023 performance appraisal process closed for any further
review. On August 14, 2023, Complainant made initial contact with an EEO Counselor identify ing the Agency’s August 2, 2023, final decision and alleged
associated harassment and offensive work environment, including a possible conflict -of-interest by the Agency’s EEO Director. Complainant alleged that
the Agency’s EEO Director being onsite and inquiring with several personnel had a distinct chilling effect on Complainant’s claims.
2 The Commission notes that the term “ Hispanic” typically denotes national
origin rather tha n race. However, herein the Commission acknowledges
Complainant's self -identification of his race as Hispanic.
In its final decision, the Agency dismissed Complainant’s claims for untimely
contact pursuant to 29 CFR § 1614.107(a)(2), and failure to state a claim
pursuant to 29 CFR § 1614.107(a)(1). The Agency found that Complainant’s
claims lack definitive dates and that the claims regarding Complainant’s 2023 performance evaluation, presumed to occur in April 2023, wer e
untimely as Complainant initiated EEO Contact in August 2023. The Agency
also found that Complainant’s claims lacked specificity and failed to alleged harm or adverse actions. The Agency noted that Complainant listed reprisal as a basis but found no EEO activity on file for Complainant. The Agency also
noted that Complainant failed to identify his racial category and disability
category.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that EEO regulations require complaints of discrimination to be brought to the attention of the EEO Counselor within forty- five (45) days of the effective date of the action , which in this case, he
argues is the date the Agency denied his grievance. Complainant also
contends that he states a claim of ongoing harassment and hostile work
environment.
On appeal, the Agency contends that Complainant’s claims regarding his 2023 performance appraisal are untimely. The Agency also contends that Complaina nt’s harassment /hostile work environment claim lacks specificity
and does not allege any actionable harm.
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 e xamine the record
without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. The Commission
should construe the comp laint 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 made in favor of the complainant.
ANALYSIS
Untimely EEO Contac t (Performance Appraisal Claims)
EEOC regulation 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. 29
C.F.R. § 1614.105(a)(1). The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to
determine when the forty -five (45) day limitation period is triggered . See
Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably suspects discriminati on, but before all the facts that support a charge of
discrimination have become apparent.
In this case, Complainant received his performance appraisal on May 19, 2023 which referred to “EEO complaints filed by firefighters.” Just a few days
after, on May 31, 2022, Complainant filed a grievance regarding his
performance appraisal. However, it was not until he received the Agency’s denial of his grievance that he contacted an EEO Counselor. On appeal,
Complainant argues that the time limitation was triggered after he received
the Agency’s denial of his grievance. We do not agree. Given the reasonable
suspicion standard, we find that the time limitation was triggered after Complainant received his performance app raisal on May 19, 2023 and
review ed the included statements regarding EEO activity . Additionally, if
Complainant was able to file a gri evance regarding his performance appraisal
just days after receipt , we find that he could have just as easily contacted an
EEO Counselor to initiate the EEO process.
We note that the Commission has consistently held that internal appeals or
informal efforts to challenge an agency's adverse action and/or the filing of a grievance do not toll the ru nning of the time limit to contact an EEO
Counselor. See Hosford v. Dep ’t of Veterans Affairs, EEOC Request No.
05890038 (June 9, 1989) . See also, Cynthia M. v. U.S. Postal Serv., EEOC
Appeal No. 2021003760 (Dec. 2, 2021). Complainant has not otherwise
presented any persuasive arguments or evidence warranting an extension of
the time limit for initiating EEO Counselor contact.
Since Complainant did not initiate contact with an E EO Counselor until
August 14, 2023, which is well beyond the applicable statutory period, we
find that the Agency properly dismissed Complainant’s claims regarding his
2023 performance appraisals. Failure to State a Claim (Harassment Claim)
Under the re gulations set forth at 29 C.F.R. Part 1614, an agency shall
accept a complaint from an aggrieved employee for employment who believes that he has been discriminated against by that agency because of a protected category. 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. Dep’t of the Air
Force , EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot
establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, Complainant alleged that the EEO Counselor’s presence onsite and
questioning of employees had a chilling effect on Complainant’s claims and was “reasonably likely to deter Complainant from engaging in protected
activity, impacted his professional reputation, etc.” ROI at 20. Complainant
did not allege any specific incidents or resulting harm (besides impacts to his
reputation) in his formal complaint or when speaking with the EEO Counselor. On appeal, Complainant does not articulate any specific incidents
or provide any supporting documentation to establish that he suffered a
present harm or loss of a term, condition, or privilege of employment as a
result of his alleged reputational harm . Given the lack of specificity regarding
the alleged harassing incidents and Complainant’s failure to allege harm, we find t hat the Agency properly dismissed Complainant’s harassment claim for
failure to state a cognizable claim of harassment.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Archie G,1
Complainant,
v.
Christine Wormuth,
Secretary,
Department of the Army,
Agency.
Appeal No. 2024001859
Agency No. 8Y1G2305019
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's decision dated December 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
ISSUE PRESENTED
Whether the agency properly dismissed the complaint of discrimination
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
contact?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Installation Fire Chief at the Agency’s Kirtland Air Force Base facility in
Albuquerque, New Mexico. On November 21, 2023, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on
the bases of race (Hispanic),
2 national origin (Mexico), sex (male), disability
(mental and physical ), age ( DOB: 1 957), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 , the Age
Discrimination in Employment Act of 1967 , and Section 501 of th e
Rehabilitation Act of 1973 when:
1. Complainant’s April 2023 performance appraisal referred to “EEO complaints filed by firefighters” and that Complainant’s conduct was
seen as favoritism by the Agency;
2. On August 2, 2023, Complainant’s grievance regarding his 2023
performance appraisal was denied;
3. Sometime before August 14, 2023, an Agency EEO Counselor conducted onsite inquiries with personnel, which had a chilling effect on Complainant’s claim and likely deterred Complainant and others from engaging in protected activity , as well as other incidents of
harassment.
A review of the record reveals that Complainant’s 2023 Performance Appraisal was issued on May 19, 2023 . On May 31, 2023, Complainant filed
a grievance regarding his 2023 Performance Appraisal. On August 2, 2023, the Agency issued its Final Decision denying Complainant’s grievance and considered the 2023 performance appraisal process closed for any further
review. On August 14, 2023, Complainant made initial contact with an EEO Counselor identify ing the Agency’s August 2, 2023, final decision and alleged
associated harassment and offensive work environment, including a possible conflict -of-interest by the Agency’s EEO Director. Complainant alleged that
the Agency’s EEO Director being onsite and inquiring with several personnel had a distinct chilling effect on Complainant’s claims.
2 The Commission notes that the term “ Hispanic” typically denotes national
origin rather tha n race. However, herein the Commission acknowledges
Complainant's self -identification of his race as Hispanic.
In its final decision, the Agency dismissed Complainant’s claims for untimely
contact pursuant to 29 CFR § 1614.107(a)(2), and failure to state a claim
pursuant to 29 CFR § 1614.107(a)(1). The Agency found that Complainant’s
claims lack definitive dates and that the claims regarding Complainant’s 2023 performance evaluation, presumed to occur in April 2023, wer e
untimely as Complainant initiated EEO Contact in August 2023. The Agency
also found that Complainant’s claims lacked specificity and failed to alleged harm or adverse actions. The Agency noted that Complainant listed reprisal as a basis but found no EEO activity on file for Complainant. The Agency also
noted that Complainant failed to identify his racial category and disability
category.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that EEO regulations require complaints of discrimination to be brought to the attention of the EEO Counselor within forty- five (45) days of the effective date of the action , which in this case, he
argues is the date the Agency denied his grievance. Complainant also
contends that he states a claim of ongoing harassment and hostile work
environment.
On appeal, the Agency contends that Complainant’s claims regarding his 2023 performance appraisal are untimely. The Agency also contends that Complaina nt’s harassment /hostile work environment claim lacks specificity
and does not allege any actionable harm.
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 e xamine the record
without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. The Commission
should construe the comp laint 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 made in favor of the complainant.
ANALYSIS
Untimely EEO Contac t (Performance Appraisal Claims)
EEOC regulation 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. 29
C.F.R. § 1614.105(a)(1). The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to
determine when the forty -five (45) day limitation period is triggered . See
Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably suspects discriminati on, but before all the facts that support a charge of
discrimination have become apparent.
In this case, Complainant received his performance appraisal on May 19, 2023 which referred to “EEO complaints filed by firefighters.” Just a few days
after, on May 31, 2022, Complainant filed a grievance regarding his
performance appraisal. However, it was not until he received the Agency’s denial of his grievance that he contacted an EEO Counselor. On appeal,
Complainant argues that the time limitation was triggered after he received
the Agency’s denial of his grievance. We do not agree. Given the reasonable
suspicion standard, we find that the time limitation was triggered after Complainant received his performance app raisal on May 19, 2023 and
review ed the included statements regarding EEO activity . Additionally, if
Complainant was able to file a gri evance regarding his performance appraisal
just days after receipt , we find that he could have just as easily contacted an
EEO Counselor to initiate the EEO process.
We note that the Commission has consistently held that internal appeals or
informal efforts to challenge an agency's adverse action and/or the filing of a grievance do not toll the ru nning of the time limit to contact an EEO
Counselor. See Hosford v. Dep ’t of Veterans Affairs, EEOC Request No.
05890038 (June 9, 1989) . See also, Cynthia M. v. U.S. Postal Serv., EEOC
Appeal No. 2021003760 (Dec. 2, 2021). Complainant has not otherwise
presented any persuasive arguments or evidence warranting an extension of
the time limit for initiating EEO Counselor contact.
Since Complainant did not initiate contact with an E EO Counselor until
August 14, 2023, which is well beyond the applicable statutory period, we
find that the Agency properly dismissed Complainant’s claims regarding his
2023 performance appraisals. Failure to State a Claim (Harassment Claim)
Under the re gulations set forth at 29 C.F.R. Part 1614, an agency shall
accept a complaint from an aggrieved employee for employment who believes that he has been discriminated against by that agency because of a protected category. 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. Dep’t of the Air
Force , EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot
establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, Complainant alleged that the EEO Counselor’s presence onsite and
questioning of employees had a chilling effect on Complainant’s claims and was “reasonably likely to deter Complainant from engaging in protected
activity, impacted his professional reputation, etc.” ROI at 20. Complainant
did not allege any specific incidents or resulting harm (besides impacts to his
reputation) in his formal complaint or when speaking with the EEO Counselor. On appeal, Complainant does not articulate any specific incidents
or provide any supporting documentation to establish that he suffered a
present harm or loss of a term, condition, or privilege of employment as a
result of his alleged reputational harm . Given the lack of specificity regarding
the alleged harassing incidents and Complainant’s failure to allege harm, we find t hat the Agency properly dismissed Complainant’s harassment claim for
failure to state a cognizable claim of harassment.
CONCLUSION
Accordingly, 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, 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 i nvolved 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 thi s
decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have
twenty (20) calendar days from rece ipt of another party’s request for
reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5,
2015).
Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal,
which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. §
1614.604.
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 reconside ration 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. 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 c osts 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
Carlton M. Hadden, Director
Office of Federal Operations
August 5, 2024
Date | [
"Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)",
"EEO Counselor. See Hosford v. Dep ’t of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989)",
"Cynthia M. v. U.S. Postal Serv., EEOC Appeal No. 2021003760 (Dec. 2, 2021)",
"Diaz v. Dep’t of the Air Force , EEOC Request No. 0593... | [
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471 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/05a50530_r.txt | 05a50530_r.txt | TXT | text/plain | 17,879 | 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(a)",
"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
"42 U.S.C. § 2000e",
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472 | https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2020003649.pdf | 2020003649.pdf | PDF | application/pdf | 16,945 | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM ISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle T .,1 Complainant, v. Avril Haines , Director, Office of the Director of National Intelligence, Agency. | June 3, 2020 | Appeal Number: 2020003649
Background:
During the period at issue, Complainant was placed by a staffing firm, General Dyn amics
Information Technology, as a Senior Functional Analyst with the Agency’s Review and Release
Branch , Freedom of Information Office, Information Management Division , located in the
Washington, D.C. metropolitan area.
On February 15, 2013, the staffing firm informed Co mplainant that her supervisor at the Agency
had requested that Complainant be removed from her posit ion.
On October 31, 2013, Complainant initiated contact with an Agency EEO counselor. The
Agency and Complainant were not able to resol ve the matter informally.
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 2020003649
On March 14, 2014, Complai nant filed a formal complaint alleging that the Agency
discriminated against her based on race (African American), color (Black), and sex (female)
when:
1. She was terminated from employment on March 1, 2013.
2. Complainant’s supervisor at the Agency made negative
comments about Complainant to other Agency components, preventing Complainant from getting a job with them prior to her termination, and she was not rehired by another staffing firm to serve the Agency in July 2013, based on the perceived attitude of her former supervisor at the Agency.
On June 6, 2014, the Agency issued a final decision, dismissing the formal complaint for failure
to state a claim . The Agency found that Complainant was not an employee of the Agency. On
June 25, 2014, Complainant filed a timely appeal from the Agency final decision. On appeal, the
Commission found that the Agency had exercised sufficient control over Complainant’s employment to qualify as a joint -employer. EE OC reversed and remanded the dismissal decision
to the Agency for further processing. See EEOC Appeal No. 0120143059 (Nov. 17, 2015).
In June 2016, the Agency completed an investigation into Complainant’s formal complaint. The Agency provided Complainan t with notice of her right to request a hearing b efore an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.
However, on April 18, 2019, the AJ assigned to the case issued a notice of dismissal of the
complaint, concluding Complain ant’s initial EEO counselor contact on October 31, 2013, was
untimely under 29 C.F.R. § 1614.105(a)(1) and 29 C.F.R. § 1614.107(a)(2). The AJ determined
that Complainant should have reasonably suspected discrimination long before she initiated counseling because she was aware that her supervisor at the Agency had purportedly made racist
commen ts before Complainant’s joint- employment assignment was terminated on February 8,
2013. The AJ reject ed Complainant’s argument that she was unaware of the EEO process or
timelines because she was a contractor. The AJ concluded that Complainant began to pursue the
EEO process by contacting attorneys in July 2013 and August 2013, but her circumstances did
not warrant toll ing the applicable 45 -day time limit for EEO c ounselor contact.
The Agency did not issue a final a ction following the AJ’s dismissal. Consequently, the AJ’s
Legal Analysis:
the Commission’s website.
2 2020003649
On March 14, 2014, Complai nant filed a formal complaint alleging that the Agency
discriminated against her based on race (African American), color (Black), and sex (female)
when:
1. She was terminated from employment on March 1, 2013.
2. Complainant’s supervisor at the Agency made negative
comments about Complainant to other Agency components, preventing Complainant from getting a job with them prior to her termination, and she was not rehired by another staffing firm to serve the Agency in July 2013, based on the perceived attitude of her former supervisor at the Agency.
On June 6, 2014, the Agency issued a final decision, dismissing the formal complaint for failure
to state a claim . The Agency found that Complainant was not an employee of the Agency. On
June 25, 2014, Complainant filed a timely appeal from the Agency final decision. On appeal, the
Commission found that the Agency had exercised sufficient control over Complainant’s employment to qualify as a joint -employer. EE OC reversed and remanded the dismissal decision
to the Agency for further processing. See EEOC Appeal No. 0120143059 (Nov. 17, 2015).
In June 2016, the Agency completed an investigation into Complainant’s formal complaint. The Agency provided Complainan t with notice of her right to request a hearing b efore an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.
However, on April 18, 2019, the AJ assigned to the case issued a notice of dismissal of the
complaint, concluding Complain ant’s initial EEO counselor contact on October 31, 2013, was
untimely under 29 C.F.R. § 1614.105(a)(1) and 29 C.F.R. § 1614.107(a)(2). The AJ determined
that Complainant should have reasonably suspected discrimination long before she initiated counseling because she was aware that her supervisor at the Agency had purportedly made racist
commen ts before Complainant’s joint- employment assignment was terminated on February 8,
2013. The AJ reject ed Complainant’s argument that she was unaware of the EEO process or
timelines because she was a contractor. The AJ concluded that Complainant began to pursue the
EEO process by contacting attorneys in July 2013 and August 2013, but her circumstances did
not warrant toll ing the applicable 45 -day time limit for EEO c ounselor contact.
The Agency did not issue a final a ction following the AJ’s dismissal. Consequently, the AJ’s
decision became the final action of the Agency pursuant to 29 C.F.R. § 1614.109( i).
On June 3, 2020, Complainant filed the present appeal. Through legal counsel, Complainant
contended that the AJ’s decision was incorrect because the Agency failed to sufficiently provide
evidence of Complainant’s untimeliness. Complainant further reasserted that Complainant had
been unaware of the time limit for EEO c ounselor contact , and that Complainant had never
received EEO training.
3 2020003649
Complainant denied seeing EEO posters at the Agency. Counsel stated that Complainant had
exercised due diligence by inquiring about the EEO process, but was misdirected bec ause of her
EEO -status as a terminated contract employee. Counsel explained that , it was not until August
2013, that an attorney advised Complainant to contact EEOC directly. Complainant did so. On
an unspecified date in September 2013, an EEOC AJ ( who was not assigned to he r case) called
Complainant directly and infor med her that she needed to initiate the EEO process with the
Agency.
The Agency opposed the appeal by supporting the AJ’s dismissal based on untimely EEO Counselor contact. Additionally , the Agency stated Complainant appeal was untimely because
the AJ decision issued on April 18, 2019 but Complainant did not appeal it until June 3, 2020.
ANALYSIS AND FINDINGS
Timeliness on Appeal
We reject the Agency’s position that this appeal w as untimely filed. Appeals to the Commission
must be filed within thirty calendar days after Complainant receives the Agency's final action. 29 C.F.R. § 1614.402(a). Here, however, the Agency failed to issue a final order on the AJ ’s
decis ion and by operati on of the regulations the AJ ’s decision became final. Under such
circumstances, there is no clear regulatory deadline for the filing of an appeal. In this case, we
conclude that Complain ant’s appeal was filed within the bounds of a reasonable time frame . As
such, we find that the Agency did not meet its burden to show that Complainant ’s appeal was
untimely.
Complainant ’s Argument of Es toppel
We also note t hat Complainant’s counsel has argued that because the Agency investigated her
claims, the Agency was estopped from using untimely EEO counselor contact as a defense to
oppose Complainant’s complaint. However, we have previously held that , in many
circumstances, acceptance and investigation of a complaint does not estop an agency from
subsequently rejecti ng the complaint due to a procedural defect. Baldwin v. Dep’t of the
Treasury , EEOC Request No. 05890561 (Aug. 25, 1989) .
Timeliness of EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires bringing complaints of discrimination to the attention of the EEO Counselor within forty -five days of the date of the matter alleged to be
discriminatory or, within forty -five days of the effective date of a personnel action. Pursuant to
29 C.F.R. § 1614.105(a)(2) , if complainant wa s unaware of th e time limit, did not know that the
discriminatory action had occurred, that circumstances beyond her control prevented contacting
the EEO Counselor, or if she provided a reason deemed sufficient, then EEOC or the Agency must toll that time limit.
4 2020003649
Here, C omplainant has explained that she did not receive EEO training because she worked as a
contract employee at the Agency. Complainant stated that she was unaware of the EEO process
or the applicable timelines . In February 2013, w hen she was removed from he r assignment with
the Agency, Com plainan t was not advised of her EEO rights. Based on Complainant’s narrative
statement to the EEO Counselor, after removal from her first assignment with the Agency, she was unsure of her status as an employee with General Dynamics Information Technology, as
well as whether she was in a position to contest the Agency’s adverse actions. In the months that followed her removal from her prior assignment, General Dynamics Information Technology
attempted to place Complainant in a different assignment with the Agency , but ultimately failed
to do so. Complainant believed that her former supervisor at the Agency had prevented her from being reassigned or rehired. We find the record is , at best, unclear as to when Complainant
became sufficiently aware of the EEO p rocess or applicable deadlines. In any event, the Agency
proffered no evidence whatsoever to challenge Complainant’s lack of EEO awareness. Where, as here, there is an issue of timeliness, "[a]n agency always bears the bu rden of obtaining sufficient
information to support a reasoned deter mination as to timeliness." Guy v. Department of
Energy, EEOC Request No. 05930703 (January 4, 1994) ( quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). The A gency has failed to meet this
burden.
Based on the foregoing, w e find that the AJ improperly dismissed Complainant’s claims for
untimely EEO contact. | U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM ISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michelle T .,1
Complainant,
v.
Avril Haines ,
Director,
Office of the Director of National Intelligence,
Agency.
Appeal No. 2020003649
Hearing No. 570-2016-01295X
Agency No. 2014-F-003
DECISION
Complainant filed notice of appeal on June 3, 2020, to the Equal Employment Opportunity
Commission (EEOC or Commission) from an April 18, 2019 EEOC Administrative Judge order
of dismissal concerning a formal comp laint 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 was placed by a staffing firm, General Dyn amics
Information Technology, as a Senior Functional Analyst with the Agency’s Review and Release
Branch , Freedom of Information Office, Information Management Division , located in the
Washington, D.C. metropolitan area.
On February 15, 2013, the staffing firm informed Co mplainant that her supervisor at the Agency
had requested that Complainant be removed from her posit ion.
On October 31, 2013, Complainant initiated contact with an Agency EEO counselor. The
Agency and Complainant were not able to resol ve the matter informally.
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 2020003649
On March 14, 2014, Complai nant filed a formal complaint alleging that the Agency
discriminated against her based on race (African American), color (Black), and sex (female)
when:
1. She was terminated from employment on March 1, 2013.
2. Complainant’s supervisor at the Agency made negative
comments about Complainant to other Agency components, preventing Complainant from getting a job with them prior to her termination, and she was not rehired by another staffing firm to serve the Agency in July 2013, based on the perceived attitude of her former supervisor at the Agency.
On June 6, 2014, the Agency issued a final decision, dismissing the formal complaint for failure
to state a claim . The Agency found that Complainant was not an employee of the Agency. On
June 25, 2014, Complainant filed a timely appeal from the Agency final decision. On appeal, the
Commission found that the Agency had exercised sufficient control over Complainant’s employment to qualify as a joint -employer. EE OC reversed and remanded the dismissal decision
to the Agency for further processing. See EEOC Appeal No. 0120143059 (Nov. 17, 2015).
In June 2016, the Agency completed an investigation into Complainant’s formal complaint. The Agency provided Complainan t with notice of her right to request a hearing b efore an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.
However, on April 18, 2019, the AJ assigned to the case issued a notice of dismissal of the
complaint, concluding Complain ant’s initial EEO counselor contact on October 31, 2013, was
untimely under 29 C.F.R. § 1614.105(a)(1) and 29 C.F.R. § 1614.107(a)(2). The AJ determined
that Complainant should have reasonably suspected discrimination long before she initiated counseling because she was aware that her supervisor at the Agency had purportedly made racist
commen ts before Complainant’s joint- employment assignment was terminated on February 8,
2013. The AJ reject ed Complainant’s argument that she was unaware of the EEO process or
timelines because she was a contractor. The AJ concluded that Complainant began to pursue the
EEO process by contacting attorneys in July 2013 and August 2013, but her circumstances did
not warrant toll ing the applicable 45 -day time limit for EEO c ounselor contact.
The Agency did not issue a final a ction following the AJ’s dismissal. Consequently, the AJ’s
decision became the final action of the Agency pursuant to 29 C.F.R. § 1614.109( i).
On June 3, 2020, Complainant filed the present appeal. Through legal counsel, Complainant
contended that the AJ’s decision was incorrect because the Agency failed to sufficiently provide
evidence of Complainant’s untimeliness. Complainant further reasserted that Complainant had
been unaware of the time limit for EEO c ounselor contact , and that Complainant had never
received EEO training.
3 2020003649
Complainant denied seeing EEO posters at the Agency. Counsel stated that Complainant had
exercised due diligence by inquiring about the EEO process, but was misdirected bec ause of her
EEO -status as a terminated contract employee. Counsel explained that , it was not until August
2013, that an attorney advised Complainant to contact EEOC directly. Complainant did so. On
an unspecified date in September 2013, an EEOC AJ ( who was not assigned to he r case) called
Complainant directly and infor med her that she needed to initiate the EEO process with the
Agency.
The Agency opposed the appeal by supporting the AJ’s dismissal based on untimely EEO Counselor contact. Additionally , the Agency stated Complainant appeal was untimely because
the AJ decision issued on April 18, 2019 but Complainant did not appeal it until June 3, 2020.
ANALYSIS AND FINDINGS
Timeliness on Appeal
We reject the Agency’s position that this appeal w as untimely filed. Appeals to the Commission
must be filed within thirty calendar days after Complainant receives the Agency's final action. 29 C.F.R. § 1614.402(a). Here, however, the Agency failed to issue a final order on the AJ ’s
decis ion and by operati on of the regulations the AJ ’s decision became final. Under such
circumstances, there is no clear regulatory deadline for the filing of an appeal. In this case, we
conclude that Complain ant’s appeal was filed within the bounds of a reasonable time frame . As
such, we find that the Agency did not meet its burden to show that Complainant ’s appeal was
untimely.
Complainant ’s Argument of Es toppel
We also note t hat Complainant’s counsel has argued that because the Agency investigated her
claims, the Agency was estopped from using untimely EEO counselor contact as a defense to
oppose Complainant’s complaint. However, we have previously held that , in many
circumstances, acceptance and investigation of a complaint does not estop an agency from
subsequently rejecti ng the complaint due to a procedural defect. Baldwin v. Dep’t of the
Treasury , EEOC Request No. 05890561 (Aug. 25, 1989) .
Timeliness of EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires bringing complaints of discrimination to the attention of the EEO Counselor within forty -five days of the date of the matter alleged to be
discriminatory or, within forty -five days of the effective date of a personnel action. Pursuant to
29 C.F.R. § 1614.105(a)(2) , if complainant wa s unaware of th e time limit, did not know that the
discriminatory action had occurred, that circumstances beyond her control prevented contacting
the EEO Counselor, or if she provided a reason deemed sufficient, then EEOC or the Agency must toll that time limit.
4 2020003649
Here, C omplainant has explained that she did not receive EEO training because she worked as a
contract employee at the Agency. Complainant stated that she was unaware of the EEO process
or the applicable timelines . In February 2013, w hen she was removed from he r assignment with
the Agency, Com plainan t was not advised of her EEO rights. Based on Complainant’s narrative
statement to the EEO Counselor, after removal from her first assignment with the Agency, she was unsure of her status as an employee with General Dynamics Information Technology, as
well as whether she was in a position to contest the Agency’s adverse actions. In the months that followed her removal from her prior assignment, General Dynamics Information Technology
attempted to place Complainant in a different assignment with the Agency , but ultimately failed
to do so. Complainant believed that her former supervisor at the Agency had prevented her from being reassigned or rehired. We find the record is , at best, unclear as to when Complainant
became sufficiently aware of the EEO p rocess or applicable deadlines. In any event, the Agency
proffered no evidence whatsoever to challenge Complainant’s lack of EEO awareness. Where, as here, there is an issue of timeliness, "[a]n agency always bears the bu rden of obtaining sufficient
information to support a reasoned deter mination as to timeliness." Guy v. Department of
Energy, EEOC Request No. 05930703 (January 4, 1994) ( quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). The A gency has failed to meet this
burden.
Based on the foregoing, w e find that the AJ improperly dismissed Complainant’s claims for
untimely EEO contact.
CONCLUSION
Accordingly, we REVERSE the AJ’s order of dismissal and REMAND Complainant’s claim s
for processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision is issued, the Agency shall submit a
renewed request for a hearing, a copy of this appellate decision, and the complaint file to the Hearings Unit of the EEOC's Washington Field Office. The Agency shall pro vide written
notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision
in accordance with 29 C.F.R. § 1614.109 and t he Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, complianc e with the Commission’s corrective
action is mandatory. Within se ven (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 requi red by the Commission, referencing the
compliance docket number under which compliance was being monitored.
5 2020003649
Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report
in the digital format required by the Commission. Se e 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 wit h the Commission’s order, the Complainant may petition the
Commiss ion for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e -16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated . See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral o f 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 (M0920)
The Commission m ay, 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 inte rpretation of ma terial 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) calend ar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A pa rty shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Cha p. 9 § VII.B
(Aug. 5, 2015).
6 2020003649
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either part y’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 3 0-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 togeth er with the request for
reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c) .
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the 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 his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “departmen t” means the national organization, and not the local office,
facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
7 2020003649
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil ac tion but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests . Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s si gnature
Carlton M. Hadden, Director
Office of Federal Operations
January 20, 2022
Date | [
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"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.107(a)",
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473 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020003204.pdf | 2020003204.pdf | PDF | application/pdf | 17,365 | Barry G .,1 Complainant, v. Ryan D. McCarthy, Secretary Department of the Army, Agency. | March 30, 2020 | Appeal Number: 2020003204
Background:
At the time of events giving rise to this complaint, Complainant worked as a Chief, Transportation Division , at the Agency’s Logistics Readiness Center facility in White Sands Missile Range, New
Mexico.
On November 11, 201 9, Complainant met with the EEO Counselor . On March 16, 2020,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African -American), sex (male), and reprisal for prior protected EEO activity
under Title VII, when:
1. On October 1, 2019, the Director instructed Complainant to include three ASC Supervisory Elements on his performance standards, but the Director did not
require the other Division Chiefs to change their standards;
2. On December 17, 2019, the Director delayed approving Complainant’s application
for the Civilian Education School Advance Course and told Complainant that he
would approve his application if Complainant completed the changes to his
“DPMAP;” and
3. As of March 13, 2020, the Director had not complete d his part of Complainant’s
performance review , so Complainant could receive a mid -point review and a
“legitimate” final evaluation.
Complainant is an African -American male. He has prior known EEO activity against the same
manager (Director) named in this action. In his formal complaint, he identifies complaint
DOC#ARWS18MAY01846 as his prior EEO activity.
Complainant alleged that, on October 17, 2019, he received confirmation that the Director treated
him differently than the other Division Chiefs. The EEO Counselor’s Report referenced Complainant’s additional allegation that, on December 16, 2019, the Director ordered
Complainant to change a subordinate’s employee’s elements and standards. Counselor’s Report, page 11 of the Record. Complainant stated that, o n January 16, 2020, he met with the EEO Counselor . Complainant
quest ioned “why my claim is being held up almost 60 days?” He expressed concern about the
delay in processing his complaint. The record includes multiple email communications between
Complainant and the EEO Counselor. Complainant was then informed that the Director was not
interested in mediation .
On January 21, 2020, Complainant received an email informing him that his complaint was being assign ed to a different counselor . The EEO Counselor’s Report identified the date of the alleged
discriminatory action as February 13, 2020, and the EEO Counselor’s Report acknowledged that
he made EEO contact that same day. The EEO Counselor’s Report stated that Complainant alleged that he discovered he was the only Division Chief whose appraisal was not signed and the elements
and standards of his appraisal had been changed by the Director. On March 11, 2020, Complainant was provided a “Notice of Right to File a Formal Complaint of Discrimination after Completion of Traditional EEO Counseling.” Complainant signed it. The
next day , Complainant again met with the EEO Counselor . Complainant informed the EEO
Counselor that the document (Notice of Right to File” he signed the day before ) “did not repre sent
the claims he filed on his DA Form 2590.” The EEO Counselor told him the document was created
by the White Sands Missile Range EEO Director . Complainant resubmitted his DA Form 2590,
clarifying the claims . Complainant stated that he expected the Agency would issue a new Notice
of Right to File , that reflected his actual claims.
On March 30, 2020, the Agency issued a final decision dismissing the complaint claims 1 and 2 ,
pursuant to 29 C.F.R. § 1614,105(a)(1) for untimely EEO Counselor contact . The Agency
concluded that Complainant made EEO contact on February 13, 2020, which was beyond the 45
calendar days. Next, the Agency dismiss ed the entire complaint pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. The Agency reasoned that the claims were not
sufficiently severe or pervasive to alter the conditions of employment.
This appeal followed. On appeal, Complainant asks that the dismissal be reversed. He maintains
that he made timely EEO contact, as was evidenced by the record. He also asserts that he stated a
viable claim of race and sex discrimination and retaliatory harassment, because he is claiming the Director changed his standards, but did not change the standards of the other directors or treat them
the same.
In response , the Agency states “ the actions or inactions with respect to the performance appraisal,
elements and training are normal supervisory / subordinate oversight issue s.” The Agency says
there was no loss of pay, no discipline, nor any other affected terms or conditions of employment. The Agency stated “ this is not the type of ultimate employment decision or management action
that T itle VII was intended to address.”
Legal Analysis:
The Commission reversed the
dismissal, finding that the Agency improperly fragmented the claim and found that a newly rais ed
incident was timely filed and like or related to the other alleged incidents.). Consequently, when
Complainant’s claims are viewed in the conte xt of a complaint of harassment, they state a claim
and should not have been dismissed. | Barry G .,1
Complainant,
v.
Ryan D. McCarthy,
Secretary
Department of the Army,
Agency.
Appeal No. 2020003204
Agency No. ARWSMR20FEB00491
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 30, 2020, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil R ights 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 Chief, Transportation Division , at the Agency’s Logistics Readiness Center facility in White Sands Missile Range, New
Mexico.
On November 11, 201 9, Complainant met with the EEO Counselor . On March 16, 2020,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African -American), sex (male), and reprisal for prior protected EEO activity
under Title VII, when:
1. On October 1, 2019, the Director instructed Complainant to include three ASC Supervisory Elements on his performance standards, but the Director did not
require the other Division Chiefs to change their standards;
2. On December 17, 2019, the Director delayed approving Complainant’s application
for the Civilian Education School Advance Course and told Complainant that he
would approve his application if Complainant completed the changes to his
“DPMAP;” and
3. As of March 13, 2020, the Director had not complete d his part of Complainant’s
performance review , so Complainant could receive a mid -point review and a
“legitimate” final evaluation.
Complainant is an African -American male. He has prior known EEO activity against the same
manager (Director) named in this action. In his formal complaint, he identifies complaint
DOC#ARWS18MAY01846 as his prior EEO activity.
Complainant alleged that, on October 17, 2019, he received confirmation that the Director treated
him differently than the other Division Chiefs. The EEO Counselor’s Report referenced Complainant’s additional allegation that, on December 16, 2019, the Director ordered
Complainant to change a subordinate’s employee’s elements and standards. Counselor’s Report, page 11 of the Record. Complainant stated that, o n January 16, 2020, he met with the EEO Counselor . Complainant
quest ioned “why my claim is being held up almost 60 days?” He expressed concern about the
delay in processing his complaint. The record includes multiple email communications between
Complainant and the EEO Counselor. Complainant was then informed that the Director was not
interested in mediation .
On January 21, 2020, Complainant received an email informing him that his complaint was being assign ed to a different counselor . The EEO Counselor’s Report identified the date of the alleged
discriminatory action as February 13, 2020, and the EEO Counselor’s Report acknowledged that
he made EEO contact that same day. The EEO Counselor’s Report stated that Complainant alleged that he discovered he was the only Division Chief whose appraisal was not signed and the elements
and standards of his appraisal had been changed by the Director. On March 11, 2020, Complainant was provided a “Notice of Right to File a Formal Complaint of Discrimination after Completion of Traditional EEO Counseling.” Complainant signed it. The
next day , Complainant again met with the EEO Counselor . Complainant informed the EEO
Counselor that the document (Notice of Right to File” he signed the day before ) “did not repre sent
the claims he filed on his DA Form 2590.” The EEO Counselor told him the document was created
by the White Sands Missile Range EEO Director . Complainant resubmitted his DA Form 2590,
clarifying the claims . Complainant stated that he expected the Agency would issue a new Notice
of Right to File , that reflected his actual claims.
On March 30, 2020, the Agency issued a final decision dismissing the complaint claims 1 and 2 ,
pursuant to 29 C.F.R. § 1614,105(a)(1) for untimely EEO Counselor contact . The Agency
concluded that Complainant made EEO contact on February 13, 2020, which was beyond the 45
calendar days. Next, the Agency dismiss ed the entire complaint pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. The Agency reasoned that the claims were not
sufficiently severe or pervasive to alter the conditions of employment.
This appeal followed. On appeal, Complainant asks that the dismissal be reversed. He maintains
that he made timely EEO contact, as was evidenced by the record. He also asserts that he stated a
viable claim of race and sex discrimination and retaliatory harassment, because he is claiming the Director changed his standards, but did not change the standards of the other directors or treat them
the same.
In response , the Agency states “ the actions or inactions with respect to the performance appraisal,
elements and training are normal supervisory / subordinate oversight issue s.” The Agency says
there was no loss of pay, no discipline, nor any other affected terms or conditions of employment. The Agency stated “ this is not the type of ultimate employment decision or management action
that T itle VII was intended to address.”
ANALYSIS AND FINDINGS
Timeliness
The regulation at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires that Complainants make EEO contact within 45 days of the date of the alleged discrimination.
We find the Agency erred in dismissing the complaint as untimely raised. The record shows that Complainant made initial EEO contact on November 11, 2019, regard ing the October 1, 2019
claim (his oldest claim), within the 45 -day limitation period . Moreover, t he record also documents
that during what appears to be a lengthy counseling period, Complainant made repeated contacts
in December of 2019, in January of 2020, and again on February 13, 2020, alleging continuing retaliatory actions. Finally, he alleged retaliatory harassment when, on March 13, 2020, the
Director did not complete his mid -point review. We find that this last claim is related to his earlier
hostile work environment claims.
For these reasons, we find that the Agency did not meet its burden to establish untimely EEO contact . We find the claims were timely presented.
Failure to State a Claim Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
Here, Complainant has alleged an ongoing pattern of harassment and disparate treatment by the
Director, who was his supervisor and against whom he filed a prior complaint. 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 suff iciently
severe or pervasive to alter the conditions of the complainant's employment. Here, we conclude that Complainant has provided sufficient allegations to state a viable claim of harassment which requires further investigation and processing. While the Agency claims that these are just routine
supervisory/subordinate oversight issues and that Complainant has failed to establish a nexus between his race, sex or prior EEO activity and the alleged harassment, this is addressing the merits
of the claim wit hout a proper investigation and is irrelevant to the procedural issue of whether
Complainant has stated a justiciable claim under Title VII or the Rehabilitation Act. 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).
Further, i n his complaint, Complainant alleged a series of events which created a hostile work
environment and allegedly occurred from October 1, 2019, and continued to March 13, 2020.
Instead of tre ating these events as incidents of the claim of harassment, however, the Agency acted
improperly by fragmenting the matters raised in a piecemeal manner. See Felisha A. v. Dep artment
of Transport ation , EEOC Appeal No. 0120140625 (June 2, 2016). (The Commission reversed the
dismissal, finding that the Agency improperly fragmented the claim and found that a newly rais ed
incident was timely filed and like or related to the other alleged incidents.). Consequently, when
Complainant’s claims are viewed in the conte xt of a complaint of harassment, they state a claim
and should not have been dismissed.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Compl ainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must sen d to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
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 fo rmat 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 c omply 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 Complain ant 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 fort h in
this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 i nterpretation 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 requ est 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 t o 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 y ou. 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 24, 2020
Date | [
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"Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991)",
"Felisha A. v. Dep artment ... | [
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474 | https://www.eeoc.gov/sites/default/files/decisions/2021_01_19/2020003204.pdf | 2020003204.pdf | PDF | application/pdf | 17,365 | Barry G .,1 Complainant, v. Ryan D. McCarthy, Secretary Department of the Army, Agency. | March 30, 2020 | Appeal Number: 2020003204
Background:
At the time of events giving rise to this complaint, Complainant worked as a Chief, Transportation Division , at the Agency’s Logistics Readiness Center facility in White Sands Missile Range, New
Mexico.
On November 11, 201 9, Complainant met with the EEO Counselor . On March 16, 2020,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African -American), sex (male), and reprisal for prior protected EEO activity
under Title VII, when:
1. On October 1, 2019, the Director instructed Complainant to include three ASC Supervisory Elements on his performance standards, but the Director did not
require the other Division Chiefs to change their standards;
2. On December 17, 2019, the Director delayed approving Complainant’s application
for the Civilian Education School Advance Course and told Complainant that he
would approve his application if Complainant completed the changes to his
“DPMAP;” and
3. As of March 13, 2020, the Director had not complete d his part of Complainant’s
performance review , so Complainant could receive a mid -point review and a
“legitimate” final evaluation.
Complainant is an African -American male. He has prior known EEO activity against the same
manager (Director) named in this action. In his formal complaint, he identifies complaint
DOC#ARWS18MAY01846 as his prior EEO activity.
Complainant alleged that, on October 17, 2019, he received confirmation that the Director treated
him differently than the other Division Chiefs. The EEO Counselor’s Report referenced Complainant’s additional allegation that, on December 16, 2019, the Director ordered
Complainant to change a subordinate’s employee’s elements and standards. Counselor’s Report, page 11 of the Record. Complainant stated that, o n January 16, 2020, he met with the EEO Counselor . Complainant
quest ioned “why my claim is being held up almost 60 days?” He expressed concern about the
delay in processing his complaint. The record includes multiple email communications between
Complainant and the EEO Counselor. Complainant was then informed that the Director was not
interested in mediation .
On January 21, 2020, Complainant received an email informing him that his complaint was being assign ed to a different counselor . The EEO Counselor’s Report identified the date of the alleged
discriminatory action as February 13, 2020, and the EEO Counselor’s Report acknowledged that
he made EEO contact that same day. The EEO Counselor’s Report stated that Complainant alleged that he discovered he was the only Division Chief whose appraisal was not signed and the elements
and standards of his appraisal had been changed by the Director. On March 11, 2020, Complainant was provided a “Notice of Right to File a Formal Complaint of Discrimination after Completion of Traditional EEO Counseling.” Complainant signed it. The
next day , Complainant again met with the EEO Counselor . Complainant informed the EEO
Counselor that the document (Notice of Right to File” he signed the day before ) “did not repre sent
the claims he filed on his DA Form 2590.” The EEO Counselor told him the document was created
by the White Sands Missile Range EEO Director . Complainant resubmitted his DA Form 2590,
clarifying the claims . Complainant stated that he expected the Agency would issue a new Notice
of Right to File , that reflected his actual claims.
On March 30, 2020, the Agency issued a final decision dismissing the complaint claims 1 and 2 ,
pursuant to 29 C.F.R. § 1614,105(a)(1) for untimely EEO Counselor contact . The Agency
concluded that Complainant made EEO contact on February 13, 2020, which was beyond the 45
calendar days. Next, the Agency dismiss ed the entire complaint pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. The Agency reasoned that the claims were not
sufficiently severe or pervasive to alter the conditions of employment.
This appeal followed. On appeal, Complainant asks that the dismissal be reversed. He maintains
that he made timely EEO contact, as was evidenced by the record. He also asserts that he stated a
viable claim of race and sex discrimination and retaliatory harassment, because he is claiming the Director changed his standards, but did not change the standards of the other directors or treat them
the same.
In response , the Agency states “ the actions or inactions with respect to the performance appraisal,
elements and training are normal supervisory / subordinate oversight issue s.” The Agency says
there was no loss of pay, no discipline, nor any other affected terms or conditions of employment. The Agency stated “ this is not the type of ultimate employment decision or management action
that T itle VII was intended to address.”
Legal Analysis:
The Commission reversed the
dismissal, finding that the Agency improperly fragmented the claim and found that a newly rais ed
incident was timely filed and like or related to the other alleged incidents.). Consequently, when
Complainant’s claims are viewed in the conte xt of a complaint of harassment, they state a claim
and should not have been dismissed. | Barry G .,1
Complainant,
v.
Ryan D. McCarthy,
Secretary
Department of the Army,
Agency.
Appeal No. 2020003204
Agency No. ARWSMR20FEB00491
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 30, 2020, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil R ights 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 Chief, Transportation Division , at the Agency’s Logistics Readiness Center facility in White Sands Missile Range, New
Mexico.
On November 11, 201 9, Complainant met with the EEO Counselor . On March 16, 2020,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African -American), sex (male), and reprisal for prior protected EEO activity
under Title VII, when:
1. On October 1, 2019, the Director instructed Complainant to include three ASC Supervisory Elements on his performance standards, but the Director did not
require the other Division Chiefs to change their standards;
2. On December 17, 2019, the Director delayed approving Complainant’s application
for the Civilian Education School Advance Course and told Complainant that he
would approve his application if Complainant completed the changes to his
“DPMAP;” and
3. As of March 13, 2020, the Director had not complete d his part of Complainant’s
performance review , so Complainant could receive a mid -point review and a
“legitimate” final evaluation.
Complainant is an African -American male. He has prior known EEO activity against the same
manager (Director) named in this action. In his formal complaint, he identifies complaint
DOC#ARWS18MAY01846 as his prior EEO activity.
Complainant alleged that, on October 17, 2019, he received confirmation that the Director treated
him differently than the other Division Chiefs. The EEO Counselor’s Report referenced Complainant’s additional allegation that, on December 16, 2019, the Director ordered
Complainant to change a subordinate’s employee’s elements and standards. Counselor’s Report, page 11 of the Record. Complainant stated that, o n January 16, 2020, he met with the EEO Counselor . Complainant
quest ioned “why my claim is being held up almost 60 days?” He expressed concern about the
delay in processing his complaint. The record includes multiple email communications between
Complainant and the EEO Counselor. Complainant was then informed that the Director was not
interested in mediation .
On January 21, 2020, Complainant received an email informing him that his complaint was being assign ed to a different counselor . The EEO Counselor’s Report identified the date of the alleged
discriminatory action as February 13, 2020, and the EEO Counselor’s Report acknowledged that
he made EEO contact that same day. The EEO Counselor’s Report stated that Complainant alleged that he discovered he was the only Division Chief whose appraisal was not signed and the elements
and standards of his appraisal had been changed by the Director. On March 11, 2020, Complainant was provided a “Notice of Right to File a Formal Complaint of Discrimination after Completion of Traditional EEO Counseling.” Complainant signed it. The
next day , Complainant again met with the EEO Counselor . Complainant informed the EEO
Counselor that the document (Notice of Right to File” he signed the day before ) “did not repre sent
the claims he filed on his DA Form 2590.” The EEO Counselor told him the document was created
by the White Sands Missile Range EEO Director . Complainant resubmitted his DA Form 2590,
clarifying the claims . Complainant stated that he expected the Agency would issue a new Notice
of Right to File , that reflected his actual claims.
On March 30, 2020, the Agency issued a final decision dismissing the complaint claims 1 and 2 ,
pursuant to 29 C.F.R. § 1614,105(a)(1) for untimely EEO Counselor contact . The Agency
concluded that Complainant made EEO contact on February 13, 2020, which was beyond the 45
calendar days. Next, the Agency dismiss ed the entire complaint pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. The Agency reasoned that the claims were not
sufficiently severe or pervasive to alter the conditions of employment.
This appeal followed. On appeal, Complainant asks that the dismissal be reversed. He maintains
that he made timely EEO contact, as was evidenced by the record. He also asserts that he stated a
viable claim of race and sex discrimination and retaliatory harassment, because he is claiming the Director changed his standards, but did not change the standards of the other directors or treat them
the same.
In response , the Agency states “ the actions or inactions with respect to the performance appraisal,
elements and training are normal supervisory / subordinate oversight issue s.” The Agency says
there was no loss of pay, no discipline, nor any other affected terms or conditions of employment. The Agency stated “ this is not the type of ultimate employment decision or management action
that T itle VII was intended to address.”
ANALYSIS AND FINDINGS
Timeliness
The regulation at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires that Complainants make EEO contact within 45 days of the date of the alleged discrimination.
We find the Agency erred in dismissing the complaint as untimely raised. The record shows that Complainant made initial EEO contact on November 11, 2019, regard ing the October 1, 2019
claim (his oldest claim), within the 45 -day limitation period . Moreover, t he record also documents
that during what appears to be a lengthy counseling period, Complainant made repeated contacts
in December of 2019, in January of 2020, and again on February 13, 2020, alleging continuing retaliatory actions. Finally, he alleged retaliatory harassment when, on March 13, 2020, the
Director did not complete his mid -point review. We find that this last claim is related to his earlier
hostile work environment claims.
For these reasons, we find that the Agency did not meet its burden to establish untimely EEO contact . We find the claims were timely presented.
Failure to State a Claim Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
Here, Complainant has alleged an ongoing pattern of harassment and disparate treatment by the
Director, who was his supervisor and against whom he filed a prior complaint. 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 suff iciently
severe or pervasive to alter the conditions of the complainant's employment. Here, we conclude that Complainant has provided sufficient allegations to state a viable claim of harassment which requires further investigation and processing. While the Agency claims that these are just routine
supervisory/subordinate oversight issues and that Complainant has failed to establish a nexus between his race, sex or prior EEO activity and the alleged harassment, this is addressing the merits
of the claim wit hout a proper investigation and is irrelevant to the procedural issue of whether
Complainant has stated a justiciable claim under Title VII or the Rehabilitation Act. 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).
Further, i n his complaint, Complainant alleged a series of events which created a hostile work
environment and allegedly occurred from October 1, 2019, and continued to March 13, 2020.
Instead of tre ating these events as incidents of the claim of harassment, however, the Agency acted
improperly by fragmenting the matters raised in a piecemeal manner. See Felisha A. v. Dep artment
of Transport ation , EEOC Appeal No. 0120140625 (June 2, 2016). (The Commission reversed the
dismissal, finding that the Agency improperly fragmented the claim and found that a newly rais ed
incident was timely filed and like or related to the other alleged incidents.). Consequently, when
Complainant’s claims are viewed in the conte xt of a complaint of harassment, they state a claim
and should not have been dismissed.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Compl ainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must sen d to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
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 fo rmat 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 c omply 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 Complain ant 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 fort h in
this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 i nterpretation 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 requ est 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 t o 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 y ou. 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 24, 2020
Date | [
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475 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a21870_r.txt | 01a21870_r.txt | TXT | text/plain | 15,511 | Michael C. Smart v. Department of the Army 01A21870 June 27, 2002 . Michael C. Smart, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency. | June 27, 2002 | Appeal Number: 01A21870
Case Facts:
Complainant filed a timely appeal with this Commission from an agency
decision dated January 23, 2002, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African American) and color (black) when:
On September 17, 2001, to October 25, 2001, complainant was subject to
harassment by the Directorate of Security and Law Enforcement, Umatilla
Chemical Depot management officials.
The agency dismissed complainant's complaint for failure to obtain
counseling pursuant to the regulation set forth at 29 C.F.R. §
1614.107(a)(2). The agency stated that although complainant made contact
with an EEO Official on October 30, 2001, within forty-five (45) days of
the alleged discriminatory events, after assignment of an EEO Counselor,
he failed to meet with the counselor on November 15, 2001, and November
29, 2001.
On appeal, complainant notes that he had difficulty in filing his
original pre-complaint. Complainant states that he had forwarded his
EEO complaint to Umatilla Chemical Depot Management, his first line
supervisor, the union, and the Regional Director of the Office of
Complaint Investigation (OCI). Complainant states that the Regional
Director of OCI sent him an e-mail on October 30, 2001, and told him
to contact Person A, the EEO Officer. Complainant explains that he
contacted Person A on October 30, 2001. According to complainant, after
he contacted Person A, Umatilla Chemical Depot Management and his first
line supervisor were made aware of his complaint by Person A in an October
31, 2001 e-mail. Complainant notes that Person A questioned management
regarding his complaint and negotiated a resolution on November 8, 2001,
which complainant refused to accept. Complainant states that Person A
e-mailed him on November 21, 2001, offering Alternative Dispute Resolution
(ADR) but complainant claims he did not respond because of another letter
he received on November 15, 2001 via e-mail and later through regular
mail. Complainant states that he was confused since the November 15,
2001 letter stated that a meeting was scheduled with Person B, Umatilla
Chemical Depot, EEO Counselor. Complainant claims that Person A never
informed him that he would have to meet with an EEO Counselor, or that
his complaint would be dismissed if he did not meet with the Umatilla
Chemical Depot EEO Counselor. Also, complainant states that Person A
did not inform him of his right to anonymity until November 6, 2001,
after an e-mail was circulated to agency management with details of his
EEO complaint. Complainant produces a letter dated January 28, 2002,
from Person A who requests further information in order to proceed in
the pre-complaint process with the issues presented to the EEO Office.
In this letter, the agency informs complainant that he must provide the
requested information to avoid dismissal of his complaint for failure to
cooperate. Complainant states that the agency was provided the requested
information through previous letters he submitted and he argues that he
amended his formal complaint in a timely manner to include additional
allegations.
In response to complainant's appeal, the agency acknowledges that
complainant's initial contact with the EEO Office was on October 30, 2001.
The agency states that the e-mail listed various incidents of alleged
harassment and was forwarded to Person A. The agency states that
Person A contacted complainant and arranged a meeting which took place
on November 5, 2001. The agency states that at the meeting, Person A
informed complainant of a proposed settlement but complainant declined
the settlement. According to the agency, complainant refused to work
further with Person A or the EEO Counselor he appointed. The agency
states that on November 15, 2001, Person A assigned Person B to perform
informal complaint processing in complainant's case. The agency states
that it notified complainant of the assignment and subsequent meeting
scheduled for November 29, 2001, by memorandum dated November 15, 2001.
The agency notes that when complainant visited Person B's office on
November 15, 2001, she informed him of her appointment and the need
to schedule an interview. When complainant refused to meet with the
EEO Counselor, Person B sent complainant a notice of right to file a
formal complaint dated December 10, 2001, and outlined the thirteen
alleged instances of racial harassment provided in his October 20,
2001 e-mail. The agency notes that complainant filed a formal complaint
dated December 16, 2001, in which he raised new allegations of racial
discrimination which the agency claims were not raised during informal
counseling. The agency argues that since complainant refused to bring
his allegations to the attention of an EEO Counselor, his complaint
should be dismissed. The agency claims that an employee does not have
the right to refuse counseling on the basis that he lacks confidence in
the impartiality of the EEO Office. Finally, the agency states
that Person A's efforts on November 7, 2001, to mediate the dispute
between complainant and management did not qualify as an alternative to
counseling under 29 C.F.R. § 1614.105(b)(2) because the agency did not
agree to offer ADR to complainant and complainant did not elect ADR in
lieu of counseling.
Legal Analysis:
Upon review, we find that the agency improperly dismissed complainant's
complaint for raising matters that were not addressed in counseling.
EEOC Regulation 29 C.F.R. §1614.105(a)requires complainants to undergo
counseling prior to filing a formal complaint. EEOC Regulation 29
C.F.R. §1614.107(a)(2) states, in pertinent part, that an agency shall
dismiss a complaint or portion thereof 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.
In the present case, both parties agree that complainant's initial
contact with the EEO Office occurred on October 30, 2001. Specifically,
on October 30, 2001, complainant sent an e-mail listing various incidents
of alleged harassment which was forwarded to the attention of Person A,
the EEO Officer. The record reveals that Person A met with complainant
on November 5, 2001, but there is no indication whether complainant was
advised of the procedures governing the informal EEO process and/or
his rights and responsibilities during EEO counseling. The record
shows that Person A questioned management regarding complainant's
complaint and negotiated a proposed resolution on November 8, 2001,
which complainant declined. Complainant claims that Person A did not
inform him that he would have to contact an EEO Counselor to pursue his
complaint and never told him that his complaint could be dismissed for
failure to meet with a counselor. Additionally, complainant states
that he was confused when he received a letter on November 15, 2001,
stating that a meeting was scheduled with Person A, an EEO Counselor.
Thereafter, on November 29, 2001, the record shows that complainant
received an e-mail from Person A offering ADR/mediation to resolve
his complaint. Complainant states that due to confusion between the
November 15, 2001 letter and the November 29, 2001 e-mail, he did not
respond to the offer of ADR. Based on the record in the present case,
we find it reasonable that complainant was confused as to the proper
procedures for pursuing the informal EEO process. In reaching this | Michael C. Smart v. Department of the Army
01A21870
June 27, 2002
.
Michael C. Smart,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A21870
Agency No. AVFQFO0111B0020
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 23, 2002, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African American) and color (black) when:
On September 17, 2001, to October 25, 2001, complainant was subject to
harassment by the Directorate of Security and Law Enforcement, Umatilla
Chemical Depot management officials.
The agency dismissed complainant's complaint for failure to obtain
counseling pursuant to the regulation set forth at 29 C.F.R. §
1614.107(a)(2). The agency stated that although complainant made contact
with an EEO Official on October 30, 2001, within forty-five (45) days of
the alleged discriminatory events, after assignment of an EEO Counselor,
he failed to meet with the counselor on November 15, 2001, and November
29, 2001.
On appeal, complainant notes that he had difficulty in filing his
original pre-complaint. Complainant states that he had forwarded his
EEO complaint to Umatilla Chemical Depot Management, his first line
supervisor, the union, and the Regional Director of the Office of
Complaint Investigation (OCI). Complainant states that the Regional
Director of OCI sent him an e-mail on October 30, 2001, and told him
to contact Person A, the EEO Officer. Complainant explains that he
contacted Person A on October 30, 2001. According to complainant, after
he contacted Person A, Umatilla Chemical Depot Management and his first
line supervisor were made aware of his complaint by Person A in an October
31, 2001 e-mail. Complainant notes that Person A questioned management
regarding his complaint and negotiated a resolution on November 8, 2001,
which complainant refused to accept. Complainant states that Person A
e-mailed him on November 21, 2001, offering Alternative Dispute Resolution
(ADR) but complainant claims he did not respond because of another letter
he received on November 15, 2001 via e-mail and later through regular
mail. Complainant states that he was confused since the November 15,
2001 letter stated that a meeting was scheduled with Person B, Umatilla
Chemical Depot, EEO Counselor. Complainant claims that Person A never
informed him that he would have to meet with an EEO Counselor, or that
his complaint would be dismissed if he did not meet with the Umatilla
Chemical Depot EEO Counselor. Also, complainant states that Person A
did not inform him of his right to anonymity until November 6, 2001,
after an e-mail was circulated to agency management with details of his
EEO complaint. Complainant produces a letter dated January 28, 2002,
from Person A who requests further information in order to proceed in
the pre-complaint process with the issues presented to the EEO Office.
In this letter, the agency informs complainant that he must provide the
requested information to avoid dismissal of his complaint for failure to
cooperate. Complainant states that the agency was provided the requested
information through previous letters he submitted and he argues that he
amended his formal complaint in a timely manner to include additional
allegations.
In response to complainant's appeal, the agency acknowledges that
complainant's initial contact with the EEO Office was on October 30, 2001.
The agency states that the e-mail listed various incidents of alleged
harassment and was forwarded to Person A. The agency states that
Person A contacted complainant and arranged a meeting which took place
on November 5, 2001. The agency states that at the meeting, Person A
informed complainant of a proposed settlement but complainant declined
the settlement. According to the agency, complainant refused to work
further with Person A or the EEO Counselor he appointed. The agency
states that on November 15, 2001, Person A assigned Person B to perform
informal complaint processing in complainant's case. The agency states
that it notified complainant of the assignment and subsequent meeting
scheduled for November 29, 2001, by memorandum dated November 15, 2001.
The agency notes that when complainant visited Person B's office on
November 15, 2001, she informed him of her appointment and the need
to schedule an interview. When complainant refused to meet with the
EEO Counselor, Person B sent complainant a notice of right to file a
formal complaint dated December 10, 2001, and outlined the thirteen
alleged instances of racial harassment provided in his October 20,
2001 e-mail. The agency notes that complainant filed a formal complaint
dated December 16, 2001, in which he raised new allegations of racial
discrimination which the agency claims were not raised during informal
counseling. The agency argues that since complainant refused to bring
his allegations to the attention of an EEO Counselor, his complaint
should be dismissed. The agency claims that an employee does not have
the right to refuse counseling on the basis that he lacks confidence in
the impartiality of the EEO Office. Finally, the agency states
that Person A's efforts on November 7, 2001, to mediate the dispute
between complainant and management did not qualify as an alternative to
counseling under 29 C.F.R. § 1614.105(b)(2) because the agency did not
agree to offer ADR to complainant and complainant did not elect ADR in
lieu of counseling.
Upon review, we find that the agency improperly dismissed complainant's
complaint for raising matters that were not addressed in counseling.
EEOC Regulation 29 C.F.R. §1614.105(a)requires complainants to undergo
counseling prior to filing a formal complaint. EEOC Regulation 29
C.F.R. §1614.107(a)(2) states, in pertinent part, that an agency shall
dismiss a complaint or portion thereof 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.
In the present case, both parties agree that complainant's initial
contact with the EEO Office occurred on October 30, 2001. Specifically,
on October 30, 2001, complainant sent an e-mail listing various incidents
of alleged harassment which was forwarded to the attention of Person A,
the EEO Officer. The record reveals that Person A met with complainant
on November 5, 2001, but there is no indication whether complainant was
advised of the procedures governing the informal EEO process and/or
his rights and responsibilities during EEO counseling. The record
shows that Person A questioned management regarding complainant's
complaint and negotiated a proposed resolution on November 8, 2001,
which complainant declined. Complainant claims that Person A did not
inform him that he would have to contact an EEO Counselor to pursue his
complaint and never told him that his complaint could be dismissed for
failure to meet with a counselor. Additionally, complainant states
that he was confused when he received a letter on November 15, 2001,
stating that a meeting was scheduled with Person A, an EEO Counselor.
Thereafter, on November 29, 2001, the record shows that complainant
received an e-mail from Person A offering ADR/mediation to resolve
his complaint. Complainant states that due to confusion between the
November 15, 2001 letter and the November 29, 2001 e-mail, he did not
respond to the offer of ADR. Based on the record in the present case,
we find it reasonable that complainant was confused as to the proper
procedures for pursuing the informal EEO process. In reaching this
conclusion, we rely on the fact that Person A presented a proposed
settlement for complainant's complaint on November 8, 2001, then told
complainant his case was assigned to an EEO Counselor on November 15,
2001, and thereafter offered complainant ADR to resolve his complaint on
November 29, 2001. Based on the facts of the present case, we find it
reasonable for complainant to believe that Person A had been providing
him the requisite counseling on his complaint. We note that this is
not a situation where complainant completely refused to discuss his
complaint with the EEO Office. In fact, the record shows complainant
had several contacts with Person A and provided sufficient information
that the counselor was able to obtain statements and affidavits from
several agency officials regarding his complaint. Thus, we find that
the agency improperly dismissed complainant's complaint for failure to
obtain EEO Counseling.
Accordingly, the agency's decision to dismiss complainant's complaint
is REVERSED and the complaint is REMANDED for further processing in
accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2002
__________________
Date
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476 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01976299.txt | 01976299.txt | TXT | text/plain | 16,102 | January 22, 1999 | Appeal Number: 01976299
Case Facts:
The Commission hereby sets aside the agency's July 17, 1997 final decision
(FAD) for lack of an adequate record and imprecise framing of the issues
in appellant's March 28, 1997 formal EEO complaint. Henry v. U.S. Postal
Service, EEOC Request No. 05940897 (May 18, 1995); Smith v. U.S. Postal
Service, EEOC Request No. 05921017 (April 15, 1993). The agency has
raised no new contentions in response to appellant's August 18, 1997
appeal<1> to compel a contrary result.
The FAD dismissed appellant's allegations of sexual harassment from
1988 to June 1996, for untimely EEO Counselor contact, pursuant to 29
C.F.R. 1614.107(b), in pertinent part. The FAD found that appellant's
August 30, 1996 EEO contact was beyond the applicable time limitation
of 45 days, as set forth at 29 C.F.R. §1614.105(a)(1). The FAD cited,
in this regard, an affidavit from appellant's Postmaster (PM), whom
appellant had alleged sexually harassed him or otherwise created
a hostile work environment, asserting there was an EEO poster in
appellant's workplace providing the necessary information including
the applicable time limitation of 45 days to initiate EEO counseling.
No copy of the poster, however, was provided by the agency in the file
transmitted to the Commission in this matter to support a finding that
appellant was on constructive notice of his EEO rights and the applicable
time limitations. Kovarik v. Department of Defense (Army and Air Force
Exchange Service), EEOC Request No. 05930898 (December 9, 1993).
We also find the agency has failed to conduct a continuing violation
Legal Analysis:
The Commission hereby sets aside the agency's July 17, 1997 final decision
(FAD) for lack of an adequate record and imprecise framing of the issues
in appellant's March 28, 1997 formal EEO complaint. Henry v. U.S. Postal
Service, EEOC Request No. 05940897 (May 18, 1995); Smith v. U.S. Postal
Service, EEOC Request No. 05921017 (April 15, 1993). The agency has
raised no new contentions in response to appellant's August 18, 1997
appeal<1> to compel a contrary result.
The FAD dismissed appellant's allegations of sexual harassment from
1988 to June 1996, for untimely EEO Counselor contact, pursuant to 29
C.F.R. 1614.107(b), in pertinent part. The FAD found that appellant's
August 30, 1996 EEO contact was beyond the applicable time limitation
of 45 days, as set forth at 29 C.F.R. §1614.105(a)(1). The FAD cited,
in this regard, an affidavit from appellant's Postmaster (PM), whom
appellant had alleged sexually harassed him or otherwise created
a hostile work environment, asserting there was an EEO poster in
appellant's workplace providing the necessary information including
the applicable time limitation of 45 days to initiate EEO counseling.
No copy of the poster, however, was provided by the agency in the file
transmitted to the Commission in this matter to support a finding that
appellant was on constructive notice of his EEO rights and the applicable
time limitations. Kovarik v. Department of Defense (Army and Air Force
Exchange Service), EEOC Request No. 05930898 (December 9, 1993).
We also find the agency has failed to conduct a continuing violation
analysis in satisfying its burden of providing sufficient evidence to
support a determination on timeliness. Guy, Jr. v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994).
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. McGivern v. U.S. Postal Service, EEOC
Request No. 05901150 (December 28, 1990). In determining whether a
continuing violation exists, the Commission has relied on the decision
in Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983),
wherein the Court set forth three relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
In addition, an agency should consider whether a complainant had
prior knowledge or suspicion of discrimination and the effect of this
knowledge. Sabree v. United Brotherhood of Carpenters & Joiners Local
No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission described Sabree,
supra, as holding that a plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that s/he is being discriminated against until
s/he experienced a series of acts and is thereby able to perceive the
overall discriminatory pattern. Hagan v. Department of Veterans Affairs,
EEOC Request No. 05920709 (Jan. 7, 1993).
In the present case, we also find that, although it appears appellant
did not initiate EEO counseling until August 30, 1996, he raised his
claims of sexual harassment verbally with a named agency official (whom
appellant has identified as the "Postmasters Supervisor" (PMSR)), on July
7, 1997, and in writing in a letter dated July 9, 1996. This letter
formed the basis for appellant's formal EEO complainant. However, we
find appellant's complaint devoid of dates of occurrence, the effect
of which is to preclude a continuing violation analysis. In short, we
find appellant has not identified in his complaint an allegation arising
within 45 days of either appellant's July 1996 correspondence with PMSR,
or appellant's August 30, 1996 EEO Counselor contact. In this regard,
we also find appellant's complaint contains numerous allegations,
including some which are vague.
We find, for example, that, as part of the relief sought in his complaint,
appellant, who was issued a September 16, 1996 removal letter, effective
September 27, 1996, asked for reinstatement. The FAD dismissed this
allegation pursuant to 29 C.F.R. §1614.107(d) because appellant, who was
veteran's preference eligible, appealed his removal to the Merit Systems
Protection Board (MSPB, or the Board). In her report, appellant's EEO
Counselor stated that appellant had "filed a complaint with the [MSPB]
regarding the removal action...and this issue was not addressed during
counseling."
In his EEOC appeal, appellant argues, in relevant part, that he withdrew
his MSPB appeal on January 14, 1997, "because I wanted the removal charges
heard by a Federal Mediator under the Grievance and Arbitration Procedures
between the [agency] and the [union]." We find, in this regard, that
appellant filed an MSPB appeal, dated October 25, 1996, challenging his
removal. Appellant's appeal was subsequently dismissed, with prejudice,
by the MSPB, based on appellant's withdrawal of his appeal.
The FAD is hereby VACATED, and appellant's complaint is hereby REMANDED
for further processing consistent with the Commission's decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of appellant's complaint. The agency shall
comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which shall
include the following actions, with which appellant shall cooperate:
1. The agency shall refer appellant to EEO counseling for the purpose
of clarifying the issues in his March 28, 1997 EEO complaint. Appellant
shall not be permitted to raise new allegations, but shall be permitted
to clarify the allegations raised in his complaint, including, but not
limited to, whether he is attempting to litigate his removal in his
current EEO complaint. Appellant shall not be required to refile his
March 28, 1997 complaint, but he shall precisely state the alleged bases
of discrimination (such as gender). Further, appellant shall provide
the EEO Counselor with a recitation of the specific underlying facts
pertaining to each and every allegation with regard to date of occurrence
and substance of the allegation. Appellant shall also distinguish for
the Counselor those events appellant considers to be "live" allegations
from those appellant has presented by way of background evidence in
support of live allegations.
2. Appellant shall provide to the EEO Counselor, in a statement submitted
under oath or affirmation, an explanation as to why, if such is the case,
he did not bring his allegations to the attention of an EEO Counselor
within 45 days of the alleged discrimination, including the last alleged
incident prior to appellant's August 30, 1996 EEO Counselor contact,
which incident appellant shall identify by date and substance.
3. The EEO Counselor shall obtain, and the agency shall so provide,
a true copy of the EEO poster cited in the affidavit of the Postmaster
referenced in the FAD. The EEO Counselor shall also ascertain, through
statements under oath or affirmation from the Postmaster at issue, and/or
other individuals with first-hand knowledge, information pertaining to
the placement of the poster relative to appellant's work area, as well
as the dates of posting.
4. Subsequently, the agency shall issue a report of supplemental
investigation, which shall include a copy of the EEO Counselor's
supplemental report, with all pertinent documentation. Thereafter, the
agency shall issue a final decision to appellant and his representative,
if any, with appeal rights to the Commission, accepting or dismissing his
EEO complaint in whole or in part. If the FAD dismisses any allegations,
it shall state the legal bases for dismissal, the underlying facts,
and the evidence relied upon.
5. The supplemental investigation, including appellant's meeting with
the EEO Counselor, the EEO Counselor's supplemental report, and issuance
of the final decision, must be completed within ninety (90) calendar
days of the date the Commission's decision becomes final. A copy of
the agency's final decision must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410. | Harold L. Gordon v. United States Postal Service
01976299
January 22, 1999
Harold L. Gordon, )
Appellant, )
)
v. ) Appeal No. 01976299
) Agency No. 4D-270-1191-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission hereby sets aside the agency's July 17, 1997 final decision
(FAD) for lack of an adequate record and imprecise framing of the issues
in appellant's March 28, 1997 formal EEO complaint. Henry v. U.S. Postal
Service, EEOC Request No. 05940897 (May 18, 1995); Smith v. U.S. Postal
Service, EEOC Request No. 05921017 (April 15, 1993). The agency has
raised no new contentions in response to appellant's August 18, 1997
appeal<1> to compel a contrary result.
The FAD dismissed appellant's allegations of sexual harassment from
1988 to June 1996, for untimely EEO Counselor contact, pursuant to 29
C.F.R. 1614.107(b), in pertinent part. The FAD found that appellant's
August 30, 1996 EEO contact was beyond the applicable time limitation
of 45 days, as set forth at 29 C.F.R. §1614.105(a)(1). The FAD cited,
in this regard, an affidavit from appellant's Postmaster (PM), whom
appellant had alleged sexually harassed him or otherwise created
a hostile work environment, asserting there was an EEO poster in
appellant's workplace providing the necessary information including
the applicable time limitation of 45 days to initiate EEO counseling.
No copy of the poster, however, was provided by the agency in the file
transmitted to the Commission in this matter to support a finding that
appellant was on constructive notice of his EEO rights and the applicable
time limitations. Kovarik v. Department of Defense (Army and Air Force
Exchange Service), EEOC Request No. 05930898 (December 9, 1993).
We also find the agency has failed to conduct a continuing violation
analysis in satisfying its burden of providing sufficient evidence to
support a determination on timeliness. Guy, Jr. v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994).
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. McGivern v. U.S. Postal Service, EEOC
Request No. 05901150 (December 28, 1990). In determining whether a
continuing violation exists, the Commission has relied on the decision
in Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983),
wherein the Court set forth three relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
In addition, an agency should consider whether a complainant had
prior knowledge or suspicion of discrimination and the effect of this
knowledge. Sabree v. United Brotherhood of Carpenters & Joiners Local
No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission described Sabree,
supra, as holding that a plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that s/he is being discriminated against until
s/he experienced a series of acts and is thereby able to perceive the
overall discriminatory pattern. Hagan v. Department of Veterans Affairs,
EEOC Request No. 05920709 (Jan. 7, 1993).
In the present case, we also find that, although it appears appellant
did not initiate EEO counseling until August 30, 1996, he raised his
claims of sexual harassment verbally with a named agency official (whom
appellant has identified as the "Postmasters Supervisor" (PMSR)), on July
7, 1997, and in writing in a letter dated July 9, 1996. This letter
formed the basis for appellant's formal EEO complainant. However, we
find appellant's complaint devoid of dates of occurrence, the effect
of which is to preclude a continuing violation analysis. In short, we
find appellant has not identified in his complaint an allegation arising
within 45 days of either appellant's July 1996 correspondence with PMSR,
or appellant's August 30, 1996 EEO Counselor contact. In this regard,
we also find appellant's complaint contains numerous allegations,
including some which are vague.
We find, for example, that, as part of the relief sought in his complaint,
appellant, who was issued a September 16, 1996 removal letter, effective
September 27, 1996, asked for reinstatement. The FAD dismissed this
allegation pursuant to 29 C.F.R. §1614.107(d) because appellant, who was
veteran's preference eligible, appealed his removal to the Merit Systems
Protection Board (MSPB, or the Board). In her report, appellant's EEO
Counselor stated that appellant had "filed a complaint with the [MSPB]
regarding the removal action...and this issue was not addressed during
counseling."
In his EEOC appeal, appellant argues, in relevant part, that he withdrew
his MSPB appeal on January 14, 1997, "because I wanted the removal charges
heard by a Federal Mediator under the Grievance and Arbitration Procedures
between the [agency] and the [union]." We find, in this regard, that
appellant filed an MSPB appeal, dated October 25, 1996, challenging his
removal. Appellant's appeal was subsequently dismissed, with prejudice,
by the MSPB, based on appellant's withdrawal of his appeal.
The FAD is hereby VACATED, and appellant's complaint is hereby REMANDED
for further processing consistent with the Commission's decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of appellant's complaint. The agency shall
comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which shall
include the following actions, with which appellant shall cooperate:
1. The agency shall refer appellant to EEO counseling for the purpose
of clarifying the issues in his March 28, 1997 EEO complaint. Appellant
shall not be permitted to raise new allegations, but shall be permitted
to clarify the allegations raised in his complaint, including, but not
limited to, whether he is attempting to litigate his removal in his
current EEO complaint. Appellant shall not be required to refile his
March 28, 1997 complaint, but he shall precisely state the alleged bases
of discrimination (such as gender). Further, appellant shall provide
the EEO Counselor with a recitation of the specific underlying facts
pertaining to each and every allegation with regard to date of occurrence
and substance of the allegation. Appellant shall also distinguish for
the Counselor those events appellant considers to be "live" allegations
from those appellant has presented by way of background evidence in
support of live allegations.
2. Appellant shall provide to the EEO Counselor, in a statement submitted
under oath or affirmation, an explanation as to why, if such is the case,
he did not bring his allegations to the attention of an EEO Counselor
within 45 days of the alleged discrimination, including the last alleged
incident prior to appellant's August 30, 1996 EEO Counselor contact,
which incident appellant shall identify by date and substance.
3. The EEO Counselor shall obtain, and the agency shall so provide,
a true copy of the EEO poster cited in the affidavit of the Postmaster
referenced in the FAD. The EEO Counselor shall also ascertain, through
statements under oath or affirmation from the Postmaster at issue, and/or
other individuals with first-hand knowledge, information pertaining to
the placement of the poster relative to appellant's work area, as well
as the dates of posting.
4. Subsequently, the agency shall issue a report of supplemental
investigation, which shall include a copy of the EEO Counselor's
supplemental report, with all pertinent documentation. Thereafter, the
agency shall issue a final decision to appellant and his representative,
if any, with appeal rights to the Commission, accepting or dismissing his
EEO complaint in whole or in part. If the FAD dismisses any allegations,
it shall state the legal bases for dismissal, the underlying facts,
and the evidence relied upon.
5. The supplemental investigation, including appellant's meeting with
the EEO Counselor, the EEO Counselor's supplemental report, and issuance
of the final decision, must be completed within ninety (90) calendar
days of the date the Commission's decision becomes final. A copy of
the agency's final decision must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. §§ 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. §l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
January 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant, on appeal, indicated he received the FAD on July 19, 1997. In
the absence of evidence to the contrary, we accept his appeal as timely.
29 C.F.R. §1614.402(a). | [
"Henry v. U.S. Postal Service, EEOC Request No. 05940897 (May 18, 1995)",
"Smith v. U.S. Postal Service, EEOC Request No. 05921017 (April 15, 1993)",
"Kovarik v. Department of Defense (Army and Air Force Exchange Service), EEOC Request No. 05930898 (December 9, 1993)",
"EEO Counselor. McGivern v. U.S. Postal ... | [
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477 | https://www.eeoc.gov/sites/default/files/decisions/2022_01_12/2021004556.pdf | 2021004556.pdf | PDF | application/pdf | 13,954 | Monroe M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Are as and Regions), Agency. | July 28, 2021 | Appeal Number: 2021004556
Background:
During the period at issue, Complainant worked as a Mail P rocessing Clerk, PS -6, at the
Agency’s Hilburn Post Office in Raleigh, North Carolina. On June 1, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 7, 2021, Complainant filed a forma l EEO complaint claiming that the Agency subjected
him to a hostile work environment based on sex, disability , age, and in reprisal for prior
protected EEO activity when:
1. on December 21, 2018, and December 24, 2018, Compl ainant was sent home for
voicing his concerns;
2. from December 21, 2018 through August 26, 2019, Complainant was denied a
reasonable accommodation;
3. on April 10, 2020, management did not abide by a grievance settlement; and
4. on December 30, 2020, C omplainant’s Office of Workers’ Compensati on
Program (OWCP) claim was denied.
On July 28, 2021, the Agency issued a final decision, dismissing the formal complaint on two
grounds. First, the Agency dismissed the formal complaint for untimely EEO Counsel or contact,
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor contact was on June 1, 2021, which it found to be beyond the 45 -day limitation
period.
Second, the Agency dismissed claim 4, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim. Specifically, the Agency found that the claim constituted a collateral attack on the
Department of Labor’s Office of Workers Compensation Programs (OWCP) adjudicatory
process. The Agency determined that this matter was outside of the Commission' s jurisdiction
and should have been raised with OWCP .
The instant appeal followed. On appeal, Complainant argues that he attempted to initiate EEO
Counselor contact on three separate occasions in December 2018. Complainant explains that he
tried calling the central telephone number on December 21, 2018. Complainant asserts,
however, that the Agency had discontinued its central phone number service and instructed
individuals to the e -file website to initiate the pre -complaint process. Complainant states t hat on
December 24, 2018, he tried to register on the e -file website and attempted to register his email
address, but that he received an “ error ” message requiring that his email address begin with a
letter. Complainant explains that his email address begin s with a number. Complainant then
stated that he attempted to access the “conta ct us” link provided on e -file website to gain
assistan ce, but this website link also was not working , and the system generated a notification
that delivery failed.
Compla inant explains that while the Agency provided documentation that he attended a tra ining
regarding the EEO process, Complainant argues that the Agency fail ed to state when he attended
this training or prove that he viewed the slide s presented during the tra ining informing him of the
EEO filing deadlines.
Legal Analysis:
the Commission' s jurisdiction
and should have been raised with OWCP .
The instant appeal followed. On appeal, Complainant argues that he attempted to initiate EEO
Counselor contact on three separate occasions in December 2018. Complainant explains that he
tried calling the central telephone number on December 21, 2018. Complainant asserts,
however, that the Agency had discontinued its central phone number service and instructed
individuals to the e -file website to initiate the pre -complaint process. Complainant states t hat on
December 24, 2018, he tried to register on the e -file website and attempted to register his email
address, but that he received an “ error ” message requiring that his email address begin with a
letter. Complainant explains that his email address begin s with a number. Complainant then
stated that he attempted to access the “conta ct us” link provided on e -file website to gain
assistan ce, but this website link also was not working , and the system generated a notification
that delivery failed.
Compla inant explains that while the Agency provided documentation that he attended a tra ining
regarding the EEO process, Complainant argues that the Agency fail ed to state when he attended
this training or prove that he viewed the slide s presented during the tra ining informing him of the
EEO filing deadlines.
ANALYSIS AND FINDINGS
Colla teral Attack (claim 4)
An employee cannot use the EEO complaint process to lodge a collateral attack on another
adjudicatory proceeding. See Wills v. Dep't of Def , EEOC Reques t 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, in volves a challenge to another forum's
proceeding, such as the grievance process, the workers' compensation process, an internal agency
investigation, or state or federal litigation. See Fisher v. Dep't of Defense , EEOC Request No.
05931059 (July 15, 1994) .
The essence of this claim involves Complainant’s denial of OWCP benefits. Complainant
explains on appeal that the OWCP relied on adversarial Agency interference with his claim.
However, t he proper forum for Complainant to have raised his challenges t o actions which
occurred during the OWCP process is within that process itself because any remedial relief
available to Complainant would be through the OWCP. There is no remedial relief available to Complainant on this matter through the E EO complaint process. Therefore, the Agency properly
dismissed the instant formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim due to lodging a collateral attack on the proceedings of the OWCP process.
Untimely EEO Couns elor Contact – (claims 1 - 3)
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 alleg ed to be discri minatory 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” 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 ch arge of
discrimination have become apparent.
Here, the record reflects that the last discrete act a t issue occurred on April 10, 2020. Therefore,
Complainant had 45 days from this action to timely contact an EEO C ounselor. However, the
record reflects that Complainant waited approximately one year to initiate EEO Counselor
contact in June 2021. There fore, Complainant’s contact was untimely.
We note that Complainant asserts that he was subjected to discriminatory harassment. However, in order for his harassment claim to prevail at least one alleged incident must have occurred
within the 45 -day limita tion period.
2 Complainant notes on appeal that his OWCP claim was ultimately approved.
As previously discussed, the last alleged incident occurred approximately one year before
Complainant initiated EEO Counselor contact. Moreo ver, Complainant has not argued
previously or on appeal that he has been subjected to ongoing harassme nt.
However, 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 diligenc e he was prevented
by circumstances beyond his control f rom contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
Here, Complainant argues that he made three attempts to initiate the pre -complaint process in
December 2018 , but he was unsuccessful. However, it is unclear why Complainant waited
approximately three years to successfully initiate EEO Counselor contact in 2021. Complaina nt
further concedes that he attended EEO training but asserts that the Agenc y has not proven when
he took this training or that he paid attention and viewed the information presented during the
training related to the 45 -day limitation period. Presumably, Complainant could have indicated
when he attended the EEO training and notably Complainant did not argue that he attended this training during the period he attempted to initiate EEO Counselor contact in 2018. Additionally, Complainant does not dispute the Agency’s assertion that the EEO Poster 72, explaining the
filing deadlines, was posted at the Agency. Consequently, Complainant does not deny that the
Agency made information regarding the 45 -day deadline available. Given the unique
circumstances of this case, we find that Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
29 C.F.R. § 1614.105(a)(2). | Monroe M.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Are as and Regions),
Agency.
Appeal No. 2021004556
Agency No. 4B-270-0040-21
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 28, 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail P rocessing Clerk, PS -6, at the
Agency’s Hilburn Post Office in Raleigh, North Carolina. On June 1, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 7, 2021, Complainant filed a forma l EEO complaint claiming that the Agency subjected
him to a hostile work environment based on sex, disability , age, and in reprisal for prior
protected EEO activity when:
1. on December 21, 2018, and December 24, 2018, Compl ainant was sent home for
voicing his concerns;
2. from December 21, 2018 through August 26, 2019, Complainant was denied a
reasonable accommodation;
3. on April 10, 2020, management did not abide by a grievance settlement; and
4. on December 30, 2020, C omplainant’s Office of Workers’ Compensati on
Program (OWCP) claim was denied.
On July 28, 2021, the Agency issued a final decision, dismissing the formal complaint on two
grounds. First, the Agency dismissed the formal complaint for untimely EEO Counsel or contact,
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor contact was on June 1, 2021, which it found to be beyond the 45 -day limitation
period.
Second, the Agency dismissed claim 4, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim. Specifically, the Agency found that the claim constituted a collateral attack on the
Department of Labor’s Office of Workers Compensation Programs (OWCP) adjudicatory
process. The Agency determined that this matter was outside of the Commission' s jurisdiction
and should have been raised with OWCP .
The instant appeal followed. On appeal, Complainant argues that he attempted to initiate EEO
Counselor contact on three separate occasions in December 2018. Complainant explains that he
tried calling the central telephone number on December 21, 2018. Complainant asserts,
however, that the Agency had discontinued its central phone number service and instructed
individuals to the e -file website to initiate the pre -complaint process. Complainant states t hat on
December 24, 2018, he tried to register on the e -file website and attempted to register his email
address, but that he received an “ error ” message requiring that his email address begin with a
letter. Complainant explains that his email address begin s with a number. Complainant then
stated that he attempted to access the “conta ct us” link provided on e -file website to gain
assistan ce, but this website link also was not working , and the system generated a notification
that delivery failed.
Compla inant explains that while the Agency provided documentation that he attended a tra ining
regarding the EEO process, Complainant argues that the Agency fail ed to state when he attended
this training or prove that he viewed the slide s presented during the tra ining informing him of the
EEO filing deadlines.
ANALYSIS AND FINDINGS
Colla teral Attack (claim 4)
An employee cannot use the EEO complaint process to lodge a collateral attack on another
adjudicatory proceeding. See Wills v. Dep't of Def , EEOC Reques t 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, in volves a challenge to another forum's
proceeding, such as the grievance process, the workers' compensation process, an internal agency
investigation, or state or federal litigation. See Fisher v. Dep't of Defense , EEOC Request No.
05931059 (July 15, 1994) .
The essence of this claim involves Complainant’s denial of OWCP benefits. Complainant
explains on appeal that the OWCP relied on adversarial Agency interference with his claim.
However, t he proper forum for Complainant to have raised his challenges t o actions which
occurred during the OWCP process is within that process itself because any remedial relief
available to Complainant would be through the OWCP. There is no remedial relief available to Complainant on this matter through the E EO complaint process. Therefore, the Agency properly
dismissed the instant formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim due to lodging a collateral attack on the proceedings of the OWCP process.
Untimely EEO Couns elor Contact – (claims 1 - 3)
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 alleg ed to be discri minatory 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” 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 ch arge of
discrimination have become apparent.
Here, the record reflects that the last discrete act a t issue occurred on April 10, 2020. Therefore,
Complainant had 45 days from this action to timely contact an EEO C ounselor. However, the
record reflects that Complainant waited approximately one year to initiate EEO Counselor
contact in June 2021. There fore, Complainant’s contact was untimely.
We note that Complainant asserts that he was subjected to discriminatory harassment. However, in order for his harassment claim to prevail at least one alleged incident must have occurred
within the 45 -day limita tion period.
2 Complainant notes on appeal that his OWCP claim was ultimately approved.
As previously discussed, the last alleged incident occurred approximately one year before
Complainant initiated EEO Counselor contact. Moreo ver, Complainant has not argued
previously or on appeal that he has been subjected to ongoing harassme nt.
However, 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 diligenc e he was prevented
by circumstances beyond his control f rom contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
Here, Complainant argues that he made three attempts to initiate the pre -complaint process in
December 2018 , but he was unsuccessful. However, it is unclear why Complainant waited
approximately three years to successfully initiate EEO Counselor contact in 2021. Complaina nt
further concedes that he attended EEO training but asserts that the Agenc y has not proven when
he took this training or that he paid attention and viewed the information presented during the
training related to the 45 -day limitation period. Presumably, Complainant could have indicated
when he attended the EEO training and notably Complainant did not argue that he attended this training during the period he attempted to initiate EEO Counselor contact in 2018. Additionally, Complainant does not dispute the Agency’s assertion that the EEO Poster 72, explaining the
filing deadlines, was posted at the Agency. Consequently, Complainant does not deny that the
Agency made information regarding the 45 -day deadline available. Given the unique
circumstances of this case, we find that Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
29 C.F.R. § 1614.105(a)(2).
CONCLUSION
The Agency’s final decision dismissing the formal complaint on the grounds discussed above is
AFFIRMED.
STATEMENT OF RIG HTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainan t or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate de cision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substanti al impact on the policies, practices, or
operations of the agency.
Requests for reconsideration 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
reconsidera tion elects to file a statement or brief in support of the request, that statement or
brief must be filed together with the requ est 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 Dire ctor, 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 deem ed 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 reconside ration 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 Compla inant 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 cir cumstances prevented the timely filing of the
request. Any supporting documentatio n must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited c ircumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACT ION (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 rec eive 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 a ction without paying these fees or
costs. Similarly, if you cannot afford an attorney to represe nt 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 a n attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
November 30, 2021
Date | [
"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)",
"Fisher v. Dep't of Defense , EEOC Request No. 05931059 (July 15, 1994)",
"Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)",
"29 C.F.... | [
-0.09386900812387466,
0.060915809124708176,
-0.003933335188776255,
0.034086503088474274,
0.010098088532686234,
0.04264742508530617,
0.007684794254601002,
-0.033446360379457474,
-0.05370774120092392,
0.027179496362805367,
0.03607926145195961,
0.012681002728641033,
-0.026434602215886116,
-0.... |
478 | https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2019005792.pdf | 2019005792.pdf | PDF | application/pdf | 13,202 | Larita G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Ve terans Affairs, Agency. | August 29, 2019 | Appeal Number: 2019005792
Background:
At the time of events giving rise to this complaint, Complainant worked
as a Nurse, VN 2, at the Agency’s Medical Cent er facility in Spokane, Washington. On July 29,
2019, Complainant filed a formal complaint alle ging that the Agency subjected her to
discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:
1. On May 15, 2018, Complainant learned that she was not selected for the position
of Infection Control in a different departme nt because her former Supervisor (S)
had slandered her name to the De partment Chief of that position;
2. On June 22, 2018, S ordered Complainant to return to the Social Work department;
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.
2019005792 2
3. On July 6, 2018, Complainant was transferred to a new position within a different
department;
4. On May 31, 2019, Complainant became aw are the matters mentioned above were
not included in the investigation of her prior EEO complaint, ORM EEO Case No.
200P-0668-2018105866, as she had been led to be lieve by the EEO counselor on
August 29, 2018.
We note that in its Dismissal, the Agency characterized the claims slightly differently. However,
we find that the claims are more ap propriately characterized as above.
The Agency dismissed the claims on the grounds that the matters were covered by the terms of a
July 2, 2018 settlement agreement between Compla inant and the Agency. The Agency further
found that the claims should be dis missed for stating the same claims2that were pending or had
been decided by the Agency pursuant to 29 C.F.R. § 1614.107(a)(1)
Legal Analysis:
the Commission’s website.
2019005792 2
3. On July 6, 2018, Complainant was transferred to a new position within a different
department;
4. On May 31, 2019, Complainant became aw are the matters mentioned above were
not included in the investigation of her prior EEO complaint, ORM EEO Case No.
200P-0668-2018105866, as she had been led to be lieve by the EEO counselor on
August 29, 2018.
We note that in its Dismissal, the Agency characterized the claims slightly differently. However,
we find that the claims are more ap propriately characterized as above.
The Agency dismissed the claims on the grounds that the matters were covered by the terms of a
July 2, 2018 settlement agreement between Compla inant and the Agency. The Agency further
found that the claims should be dis missed for stating the same claims2that were pending or had
been decided by the Agency pursuant to 29 C.F.R. § 1614.107(a)(1)
ANALYSIS AND FINDINGS
We note initially that Complainant explained to the EEO Counselor, and ag ain explains in her
Formal Complaint, that she initially raised the matter of S slandering he r and her subsequent non-
selection for the Infection Control position to th e EEO Counselor of her former EEO complaint,
on May 17, 2018, under Agency No. 200P-0068-2018105866. Complainant states:
I was told that my . . . complaint would be filed and investigated through the EEOC
process. I was also told by [the former EEO Counselor] at this time that I did not
need to call the EEOC to report further counts of retaliation as they would all be
included in my file. I was never informed that management had been notified of the
[slander allegation] that occurred on May 15, 2018. I did not contact the EEO regarding the retaliatory act that occurred on June 22, 2018, as I was told by my EEO counselor that all acts of retaliation would be incl uded in my file and there
was no need to notify him of additional act of retaliation. Neither count of
retaliation was ever discussed during m ediation that occurred on July 2, 2019.
Therefore, it was my assumption that these counts were to be included and investigated as part of my EEO case number 200P-0068-2018105866 made on August 29, 2018. . . . On May 31, 2019, I was provided with the final investigation report [for her prior complaint] that was to cover acts of retaliation by my supervisor and her accomplices at the S pokane VA Medical Ce nter. Upon review
of this investigation, I disc overed that neither of the two above mentioned acts of
retaliation were included in the investigation as was implied by the EEO counselor[name omitted]. The only count of retalia tion that was investigated was the act
committed in August of 2018 that resulted in my denial of promotion [a separate
2We note that the Dismissal stated that Complainant failed to state a claim pursuant to
§1614.107(a)(1) when in fact the Agency presumably meant Complainant was stating the same
claim as a pending or previously decided claim, pursuant to that same section.
2019005792 3
claim than the May 15, 2018 nonselection]. I filed the missing c ounts of retaliation
with the EEOC on June 17, 2019.
We next note that the record shows Complainant entered into a Settlement Agreement with the
Agency on July 3, 2018, wherein she agreed to:
[V]oluntarily withdraw[] any and all pending informal and formal EEO complaints,
any appeals to the Merit Systems Protection Board, any complaints before the Office of Special Counsel, any grievances, whether formal or informal, any court
actions, and all other claims arising under any federal, state, or local law, regulation, or ordinance, against the Agency, its past and present administrators or employees,
in their personal or official capacities, in any stage of processing in their entirety, including, but not limited to, EEO Agency Case No. 200P-0668-2018104015.
It is thus clear that at the time she entered into the Settlement Agreement with the Agency,
Complainant believed that the matters raised in claims 1 and 2 were active and pending, and hence when she signed the Agreement, she agreed to withdraw those claims. We therefore find that the Agency correctly dismissed claims 1 and 2 for th e reasons provided in its Dismissal. On appeal,
Complainant argues that the matters raised in claims 1 and 2 were not addressed during the settlement negotiations and theref ore should not be covered by the Settlement Agreement. We
note, however, that the Agreement explicitly states that it covers “any and all pending informal and formal EEO Complaints, . . . including but not limited to” the claim under discussion at the
time. We therefore find that, despite the fact claims 1 and 2 were not specifically addressed during negotiations, they are nevertheless cove red by the terms of the Agreement.
To the extent that Complainant contends on appeal that the Agency did not in fact accept claims 1
and 2 and thus they were not pending at the time she signed the Settlement Agreement, we note that the Settlement Agreement also addresses “all other claims aris ing under any federal . . . law”
which would include claims 1 and 2 even if they were not deemed “pending.” But even assuming
arguendo that claims 1 and 2 are not covered by the Agreement because they were not accepted
by the Agency, such claims would then be subject to dismissal for untimely EEO Counselor
contact, along with claim 3. We note that EEO C 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 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. With
regard to claim 3, Complainant maintains that she was transferred to a new position within a different department on July 6, 2018, but Compla inant did not initiate contact with an EEO
Counselor until June 17, 2019, which is beyond the forty-five (45) day limitation period. Similarly,
if Complainant maintains that claims 1 and 2 should not be deemed as pending at the time of the Settlement Agreement that woul d make Complainant’s June 17, 2019 Counselor contact for those
claims untimely for actions that occurr ed on May 15, and June 22, 2018, respectively
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
2019005792 4
them, that she did not know and reasonably shoul d not have known that th e discriminatory matter
or personnel action occurred, that despite due diligence she wa s 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 Co mmission. On appeal, Complainant has presented no
persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
With regard to claim 4, we note that pursuant to § 1614.105(a)(8), the Agency shall dismiss a
complaint that alleges dissatisfaction with the f iling of a previously-filed complaint. We therefore
find that claim 4 should be dismissed.
On appeal, Complainant argues that the Settle ment Agreement should be voided because she
signed it under duress and because Complainant received nothing of value. We note, however, that pursuant to clause (3) of the Settlement Agreem ent, as well as § 1614.504(a), any allegation of
noncompliance with a Settlement Agreement must fi rst be raised with the Agency EEO Director.
As the record does not show that Complainant has raised the matter with the Agency EEO Director we decline to address the matter for the first time on appeal. | Larita G.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Ve terans Affairs,
Agency.
Appeal No. 2019005792
Agency No. 200P-0668-2019104164
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (Dis missal) dated August 29, 2019, dismissing her
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amende d, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Nurse, VN 2, at the Agency’s Medical Cent er facility in Spokane, Washington. On July 29,
2019, Complainant filed a formal complaint alle ging that the Agency subjected her to
discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:
1. On May 15, 2018, Complainant learned that she was not selected for the position
of Infection Control in a different departme nt because her former Supervisor (S)
had slandered her name to the De partment Chief of that position;
2. On June 22, 2018, S ordered Complainant to return to the Social Work department;
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.
2019005792 2
3. On July 6, 2018, Complainant was transferred to a new position within a different
department;
4. On May 31, 2019, Complainant became aw are the matters mentioned above were
not included in the investigation of her prior EEO complaint, ORM EEO Case No.
200P-0668-2018105866, as she had been led to be lieve by the EEO counselor on
August 29, 2018.
We note that in its Dismissal, the Agency characterized the claims slightly differently. However,
we find that the claims are more ap propriately characterized as above.
The Agency dismissed the claims on the grounds that the matters were covered by the terms of a
July 2, 2018 settlement agreement between Compla inant and the Agency. The Agency further
found that the claims should be dis missed for stating the same claims2that were pending or had
been decided by the Agency pursuant to 29 C.F.R. § 1614.107(a)(1)
ANALYSIS AND FINDINGS
We note initially that Complainant explained to the EEO Counselor, and ag ain explains in her
Formal Complaint, that she initially raised the matter of S slandering he r and her subsequent non-
selection for the Infection Control position to th e EEO Counselor of her former EEO complaint,
on May 17, 2018, under Agency No. 200P-0068-2018105866. Complainant states:
I was told that my . . . complaint would be filed and investigated through the EEOC
process. I was also told by [the former EEO Counselor] at this time that I did not
need to call the EEOC to report further counts of retaliation as they would all be
included in my file. I was never informed that management had been notified of the
[slander allegation] that occurred on May 15, 2018. I did not contact the EEO regarding the retaliatory act that occurred on June 22, 2018, as I was told by my EEO counselor that all acts of retaliation would be incl uded in my file and there
was no need to notify him of additional act of retaliation. Neither count of
retaliation was ever discussed during m ediation that occurred on July 2, 2019.
Therefore, it was my assumption that these counts were to be included and investigated as part of my EEO case number 200P-0068-2018105866 made on August 29, 2018. . . . On May 31, 2019, I was provided with the final investigation report [for her prior complaint] that was to cover acts of retaliation by my supervisor and her accomplices at the S pokane VA Medical Ce nter. Upon review
of this investigation, I disc overed that neither of the two above mentioned acts of
retaliation were included in the investigation as was implied by the EEO counselor[name omitted]. The only count of retalia tion that was investigated was the act
committed in August of 2018 that resulted in my denial of promotion [a separate
2We note that the Dismissal stated that Complainant failed to state a claim pursuant to
§1614.107(a)(1) when in fact the Agency presumably meant Complainant was stating the same
claim as a pending or previously decided claim, pursuant to that same section.
2019005792 3
claim than the May 15, 2018 nonselection]. I filed the missing c ounts of retaliation
with the EEOC on June 17, 2019.
We next note that the record shows Complainant entered into a Settlement Agreement with the
Agency on July 3, 2018, wherein she agreed to:
[V]oluntarily withdraw[] any and all pending informal and formal EEO complaints,
any appeals to the Merit Systems Protection Board, any complaints before the Office of Special Counsel, any grievances, whether formal or informal, any court
actions, and all other claims arising under any federal, state, or local law, regulation, or ordinance, against the Agency, its past and present administrators or employees,
in their personal or official capacities, in any stage of processing in their entirety, including, but not limited to, EEO Agency Case No. 200P-0668-2018104015.
It is thus clear that at the time she entered into the Settlement Agreement with the Agency,
Complainant believed that the matters raised in claims 1 and 2 were active and pending, and hence when she signed the Agreement, she agreed to withdraw those claims. We therefore find that the Agency correctly dismissed claims 1 and 2 for th e reasons provided in its Dismissal. On appeal,
Complainant argues that the matters raised in claims 1 and 2 were not addressed during the settlement negotiations and theref ore should not be covered by the Settlement Agreement. We
note, however, that the Agreement explicitly states that it covers “any and all pending informal and formal EEO Complaints, . . . including but not limited to” the claim under discussion at the
time. We therefore find that, despite the fact claims 1 and 2 were not specifically addressed during negotiations, they are nevertheless cove red by the terms of the Agreement.
To the extent that Complainant contends on appeal that the Agency did not in fact accept claims 1
and 2 and thus they were not pending at the time she signed the Settlement Agreement, we note that the Settlement Agreement also addresses “all other claims aris ing under any federal . . . law”
which would include claims 1 and 2 even if they were not deemed “pending.” But even assuming
arguendo that claims 1 and 2 are not covered by the Agreement because they were not accepted
by the Agency, such claims would then be subject to dismissal for untimely EEO Counselor
contact, along with claim 3. We note that EEO C 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 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. With
regard to claim 3, Complainant maintains that she was transferred to a new position within a different department on July 6, 2018, but Compla inant did not initiate contact with an EEO
Counselor until June 17, 2019, which is beyond the forty-five (45) day limitation period. Similarly,
if Complainant maintains that claims 1 and 2 should not be deemed as pending at the time of the Settlement Agreement that woul d make Complainant’s June 17, 2019 Counselor contact for those
claims untimely for actions that occurr ed on May 15, and June 22, 2018, respectively
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
2019005792 4
them, that she did not know and reasonably shoul d not have known that th e discriminatory matter
or personnel action occurred, that despite due diligence she wa s 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 Co mmission. On appeal, Complainant has presented no
persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
With regard to claim 4, we note that pursuant to § 1614.105(a)(8), the Agency shall dismiss a
complaint that alleges dissatisfaction with the f iling of a previously-filed complaint. We therefore
find that claim 4 should be dismissed.
On appeal, Complainant argues that the Settle ment Agreement should be voided because she
signed it under duress and because Complainant received nothing of value. We note, however, that pursuant to clause (3) of the Settlement Agreem ent, as well as § 1614.504(a), any allegation of
noncompliance with a Settlement Agreement must fi rst be raised with the Agency EEO Director.
As the record does not show that Complainant has raised the matter with the Agency EEO Director we decline to address the matter for the first time on appeal.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider th e 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 err oneous 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, w ith 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 oppos ition. 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 argu ments must be submitted to th e Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
2019005792 5
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 absen ce 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 in clude 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 decisi on. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head 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. “Age ncy” 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 civ il action without paying these fees or costs.
Similarly, if you cannot afford an attorney to re present you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.
2019005792 6
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 31, 2020
Date | [
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"29 C.F.R. § 1614.403(g)",
"29 C.F.R. § 1614.604(c)",
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479 | https://www.eeoc.gov/sites/default/files/decisions/2022_03_02/2021004556.pdf | 2021004556.pdf | PDF | application/pdf | 13,954 | Monroe M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Are as and Regions), Agency. | July 28, 2021 | Appeal Number: 2021004556
Background:
During the period at issue, Complainant worked as a Mail P rocessing Clerk, PS -6, at the
Agency’s Hilburn Post Office in Raleigh, North Carolina. On June 1, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 7, 2021, Complainant filed a forma l EEO complaint claiming that the Agency subjected
him to a hostile work environment based on sex, disability , age, and in reprisal for prior
protected EEO activity when:
1. on December 21, 2018, and December 24, 2018, Compl ainant was sent home for
voicing his concerns;
2. from December 21, 2018 through August 26, 2019, Complainant was denied a
reasonable accommodation;
3. on April 10, 2020, management did not abide by a grievance settlement; and
4. on December 30, 2020, C omplainant’s Office of Workers’ Compensati on
Program (OWCP) claim was denied.
On July 28, 2021, the Agency issued a final decision, dismissing the formal complaint on two
grounds. First, the Agency dismissed the formal complaint for untimely EEO Counsel or contact,
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor contact was on June 1, 2021, which it found to be beyond the 45 -day limitation
period.
Second, the Agency dismissed claim 4, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim. Specifically, the Agency found that the claim constituted a collateral attack on the
Department of Labor’s Office of Workers Compensation Programs (OWCP) adjudicatory
process. The Agency determined that this matter was outside of the Commission' s jurisdiction
and should have been raised with OWCP .
The instant appeal followed. On appeal, Complainant argues that he attempted to initiate EEO
Counselor contact on three separate occasions in December 2018. Complainant explains that he
tried calling the central telephone number on December 21, 2018. Complainant asserts,
however, that the Agency had discontinued its central phone number service and instructed
individuals to the e -file website to initiate the pre -complaint process. Complainant states t hat on
December 24, 2018, he tried to register on the e -file website and attempted to register his email
address, but that he received an “ error ” message requiring that his email address begin with a
letter. Complainant explains that his email address begin s with a number. Complainant then
stated that he attempted to access the “conta ct us” link provided on e -file website to gain
assistan ce, but this website link also was not working , and the system generated a notification
that delivery failed.
Compla inant explains that while the Agency provided documentation that he attended a tra ining
regarding the EEO process, Complainant argues that the Agency fail ed to state when he attended
this training or prove that he viewed the slide s presented during the tra ining informing him of the
EEO filing deadlines.
Legal Analysis:
the Commission' s jurisdiction
and should have been raised with OWCP .
The instant appeal followed. On appeal, Complainant argues that he attempted to initiate EEO
Counselor contact on three separate occasions in December 2018. Complainant explains that he
tried calling the central telephone number on December 21, 2018. Complainant asserts,
however, that the Agency had discontinued its central phone number service and instructed
individuals to the e -file website to initiate the pre -complaint process. Complainant states t hat on
December 24, 2018, he tried to register on the e -file website and attempted to register his email
address, but that he received an “ error ” message requiring that his email address begin with a
letter. Complainant explains that his email address begin s with a number. Complainant then
stated that he attempted to access the “conta ct us” link provided on e -file website to gain
assistan ce, but this website link also was not working , and the system generated a notification
that delivery failed.
Compla inant explains that while the Agency provided documentation that he attended a tra ining
regarding the EEO process, Complainant argues that the Agency fail ed to state when he attended
this training or prove that he viewed the slide s presented during the tra ining informing him of the
EEO filing deadlines.
ANALYSIS AND FINDINGS
Colla teral Attack (claim 4)
An employee cannot use the EEO complaint process to lodge a collateral attack on another
adjudicatory proceeding. See Wills v. Dep't of Def , EEOC Reques t 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, in volves a challenge to another forum's
proceeding, such as the grievance process, the workers' compensation process, an internal agency
investigation, or state or federal litigation. See Fisher v. Dep't of Defense , EEOC Request No.
05931059 (July 15, 1994) .
The essence of this claim involves Complainant’s denial of OWCP benefits. Complainant
explains on appeal that the OWCP relied on adversarial Agency interference with his claim.
However, t he proper forum for Complainant to have raised his challenges t o actions which
occurred during the OWCP process is within that process itself because any remedial relief
available to Complainant would be through the OWCP. There is no remedial relief available to Complainant on this matter through the E EO complaint process. Therefore, the Agency properly
dismissed the instant formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim due to lodging a collateral attack on the proceedings of the OWCP process.
Untimely EEO Couns elor Contact – (claims 1 - 3)
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 alleg ed to be discri minatory 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” 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 ch arge of
discrimination have become apparent.
Here, the record reflects that the last discrete act a t issue occurred on April 10, 2020. Therefore,
Complainant had 45 days from this action to timely contact an EEO C ounselor. However, the
record reflects that Complainant waited approximately one year to initiate EEO Counselor
contact in June 2021. There fore, Complainant’s contact was untimely.
We note that Complainant asserts that he was subjected to discriminatory harassment. However, in order for his harassment claim to prevail at least one alleged incident must have occurred
within the 45 -day limita tion period.
2 Complainant notes on appeal that his OWCP claim was ultimately approved.
As previously discussed, the last alleged incident occurred approximately one year before
Complainant initiated EEO Counselor contact. Moreo ver, Complainant has not argued
previously or on appeal that he has been subjected to ongoing harassme nt.
However, 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 diligenc e he was prevented
by circumstances beyond his control f rom contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
Here, Complainant argues that he made three attempts to initiate the pre -complaint process in
December 2018 , but he was unsuccessful. However, it is unclear why Complainant waited
approximately three years to successfully initiate EEO Counselor contact in 2021. Complaina nt
further concedes that he attended EEO training but asserts that the Agenc y has not proven when
he took this training or that he paid attention and viewed the information presented during the
training related to the 45 -day limitation period. Presumably, Complainant could have indicated
when he attended the EEO training and notably Complainant did not argue that he attended this training during the period he attempted to initiate EEO Counselor contact in 2018. Additionally, Complainant does not dispute the Agency’s assertion that the EEO Poster 72, explaining the
filing deadlines, was posted at the Agency. Consequently, Complainant does not deny that the
Agency made information regarding the 45 -day deadline available. Given the unique
circumstances of this case, we find that Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
29 C.F.R. § 1614.105(a)(2). | Monroe M.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Field Are as and Regions),
Agency.
Appeal No. 2021004556
Agency No. 4B-270-0040-21
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 28, 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail P rocessing Clerk, PS -6, at the
Agency’s Hilburn Post Office in Raleigh, North Carolina. On June 1, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 7, 2021, Complainant filed a forma l EEO complaint claiming that the Agency subjected
him to a hostile work environment based on sex, disability , age, and in reprisal for prior
protected EEO activity when:
1. on December 21, 2018, and December 24, 2018, Compl ainant was sent home for
voicing his concerns;
2. from December 21, 2018 through August 26, 2019, Complainant was denied a
reasonable accommodation;
3. on April 10, 2020, management did not abide by a grievance settlement; and
4. on December 30, 2020, C omplainant’s Office of Workers’ Compensati on
Program (OWCP) claim was denied.
On July 28, 2021, the Agency issued a final decision, dismissing the formal complaint on two
grounds. First, the Agency dismissed the formal complaint for untimely EEO Counsel or contact,
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor contact was on June 1, 2021, which it found to be beyond the 45 -day limitation
period.
Second, the Agency dismissed claim 4, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim. Specifically, the Agency found that the claim constituted a collateral attack on the
Department of Labor’s Office of Workers Compensation Programs (OWCP) adjudicatory
process. The Agency determined that this matter was outside of the Commission' s jurisdiction
and should have been raised with OWCP .
The instant appeal followed. On appeal, Complainant argues that he attempted to initiate EEO
Counselor contact on three separate occasions in December 2018. Complainant explains that he
tried calling the central telephone number on December 21, 2018. Complainant asserts,
however, that the Agency had discontinued its central phone number service and instructed
individuals to the e -file website to initiate the pre -complaint process. Complainant states t hat on
December 24, 2018, he tried to register on the e -file website and attempted to register his email
address, but that he received an “ error ” message requiring that his email address begin with a
letter. Complainant explains that his email address begin s with a number. Complainant then
stated that he attempted to access the “conta ct us” link provided on e -file website to gain
assistan ce, but this website link also was not working , and the system generated a notification
that delivery failed.
Compla inant explains that while the Agency provided documentation that he attended a tra ining
regarding the EEO process, Complainant argues that the Agency fail ed to state when he attended
this training or prove that he viewed the slide s presented during the tra ining informing him of the
EEO filing deadlines.
ANALYSIS AND FINDINGS
Colla teral Attack (claim 4)
An employee cannot use the EEO complaint process to lodge a collateral attack on another
adjudicatory proceeding. See Wills v. Dep't of Def , EEOC Reques t 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, in volves a challenge to another forum's
proceeding, such as the grievance process, the workers' compensation process, an internal agency
investigation, or state or federal litigation. See Fisher v. Dep't of Defense , EEOC Request No.
05931059 (July 15, 1994) .
The essence of this claim involves Complainant’s denial of OWCP benefits. Complainant
explains on appeal that the OWCP relied on adversarial Agency interference with his claim.
However, t he proper forum for Complainant to have raised his challenges t o actions which
occurred during the OWCP process is within that process itself because any remedial relief
available to Complainant would be through the OWCP. There is no remedial relief available to Complainant on this matter through the E EO complaint process. Therefore, the Agency properly
dismissed the instant formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim due to lodging a collateral attack on the proceedings of the OWCP process.
Untimely EEO Couns elor Contact – (claims 1 - 3)
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 alleg ed to be discri minatory 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” 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 ch arge of
discrimination have become apparent.
Here, the record reflects that the last discrete act a t issue occurred on April 10, 2020. Therefore,
Complainant had 45 days from this action to timely contact an EEO C ounselor. However, the
record reflects that Complainant waited approximately one year to initiate EEO Counselor
contact in June 2021. There fore, Complainant’s contact was untimely.
We note that Complainant asserts that he was subjected to discriminatory harassment. However, in order for his harassment claim to prevail at least one alleged incident must have occurred
within the 45 -day limita tion period.
2 Complainant notes on appeal that his OWCP claim was ultimately approved.
As previously discussed, the last alleged incident occurred approximately one year before
Complainant initiated EEO Counselor contact. Moreo ver, Complainant has not argued
previously or on appeal that he has been subjected to ongoing harassme nt.
However, 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 diligenc e he was prevented
by circumstances beyond his control f rom contacting the Counselor within the time limits, or for
other reasons considered sufficient by the Agency or the Commission. 29 C.F.R.
§ 1614.105(a)(2).
Here, Complainant argues that he made three attempts to initiate the pre -complaint process in
December 2018 , but he was unsuccessful. However, it is unclear why Complainant waited
approximately three years to successfully initiate EEO Counselor contact in 2021. Complaina nt
further concedes that he attended EEO training but asserts that the Agenc y has not proven when
he took this training or that he paid attention and viewed the information presented during the
training related to the 45 -day limitation period. Presumably, Complainant could have indicated
when he attended the EEO training and notably Complainant did not argue that he attended this training during the period he attempted to initiate EEO Counselor contact in 2018. Additionally, Complainant does not dispute the Agency’s assertion that the EEO Poster 72, explaining the
filing deadlines, was posted at the Agency. Consequently, Complainant does not deny that the
Agency made information regarding the 45 -day deadline available. Given the unique
circumstances of this case, we find that Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
29 C.F.R. § 1614.105(a)(2).
CONCLUSION
The Agency’s final decision dismissing the formal complaint on the grounds discussed above is
AFFIRMED.
STATEMENT OF RIG HTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainan t or the
Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate de cision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substanti al impact on the policies, practices, or
operations of the agency.
Requests for reconsideration 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
reconsidera tion elects to file a statement or brief in support of the request, that statement or
brief must be filed together with the requ est 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 Dire ctor, 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 deem ed 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 reconside ration 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 Compla inant 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 cir cumstances prevented the timely filing of the
request. Any supporting documentatio n must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited c ircumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACT ION (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 rec eive 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 a ction without paying these fees or
costs. Similarly, if you cannot afford an attorney to represe nt 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 a n attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
November 30, 2021
Date | [
"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)",
"Fisher v. Dep't of Defense , EEOC Request No. 05931059 (July 15, 1994)",
"Howard v. Dep’t of the Navy , EEOC Request No. 05970852 (Feb. 11, 1999)",
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480 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a40925.final.txt | 01a40925.final.txt | TXT | text/plain | 14,327 | Frederick K. Smith v. Department of Veterans Affairs 01A40925 September 28, 2005 . Frederick K. Smith, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. | September 28, 2005 | Appeal Number: 01A40925
Case Facts:
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. § 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Chief, Police & Security, GS-12, at the agency's Medical Center,
Oklahoma City, Oklahoma facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on December 15, 2000, alleging that
he was subjected to a hostile work environment on the basis of reprisal
for prior EEO activity when:
(1) On September 20, 2000, a union official (MG) filed a false unfair
labor practice (ULP) complaint against complainant which alleged that
complainant improperly called a meeting to discuss union activities
and issues;
On September 21, 2000, MG filed a second false ULP complaint alleging
complainant improperly advised a union member not to seek assistance
from the union regarding a hiring issue;
On October 5, 2000, MG submitted a materially false, fictitious and
fraudulent EEO document to an EEO counselor, an Office of Special Counsel
(OSC) investigator and union officials;
On October 11, 2000, MG filed a false ULP complaint against complainant
alleging that the EEO complaint against MG was a form of harassment
and a civil rights violation;
On October 12, 2000, MG circulated throughout the medical center a
document regarding complainant being in arrears on his child support;
On October 19 and 24, 2000, MG falsely accused complainant of directing
security cameras to monitor him and others;
On October 24, 2000, MG questioned, harassed and interrupted
complainant's staff;
On October 25, 2000, MG suggested to the investigating officer that
complainant had something to do with MG's vehicle being stolen;
On October 31, 2000, MG made inappropriate and threatening remarks
about complainant's employment and told complainant's subordinate that
"your Chief is going to mess around and not make it off probation;"
On May 17, 2001, complainant learned that MG falsely told other employees
that complainant threatened to arrest MG;
On June 1, 2001, complainant was informed that he was being accused by
the union of placing security cameras in the women's restrooms;
On June 4, 2001, complainant was informed that the Vice President of the
union was spreading the "bathroom accusation" to others at the agency;
On June 4, 2001, complainant was informed that the union had posted,
on its bulletin board, a cartoon depicting women using the restroom
while cameras were watching them; and
On July 2, 2001, complainant learned that the 9th District Union
Representative (ML) had told one of complainant's subordinates (JB)
that he was harassing MG, failing to protect his safety, and engaging
in inappropriate behavior.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its Final Agency Decision (FAD), the agency concludes the above
allegations did, in fact, occur. In addition, the agency concludes
that MG was out to get complainant because complainant named him in
an EEO complaint and MG utilized his position as the union President
to create a hostile work environment by making numerous false
accusations against complainant and generally taking steps to defame
his reputation and character. In addition, the agency concluded that
while the evidence shows that mild personality conflicts between MG
and complainant originated prior to complainant's EEO activity (i.e.,
prior to September 15, 2000), the record also supports the finding that
MG initiated a series of allegations against complainant immediately
after he named MG in his EEO complaint.
Despite these findings, the agency concluded that "while complainant
has shown the harassing conduct by MG occurred, he has failed to show
that MG was acting on the part of management, he has failed to show that
management took no action to quell the harassment, and he has failed to
show that there is some basic legal principle permitting the assignment
of liability to management in this case."
On appeal, complainant generally contends that management had the ability
and was obligated to take steps to end the retaliation despite MG's
union status. The agency requests that we affirm its FAD.
Legal Analysis:
the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Chief, Police & Security, GS-12, at the agency's Medical Center,
Oklahoma City, Oklahoma facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on December 15, 2000, alleging that
he was subjected to a hostile work environment on the basis of reprisal
for prior EEO activity when:
(1) On September 20, 2000, a union official (MG) filed a false unfair
labor practice (ULP) complaint against complainant which alleged that
complainant improperly called a meeting to discuss union activities
and issues;
On September 21, 2000, MG filed a second false ULP complaint alleging
complainant improperly advised a union member not to seek assistance
from the union regarding a hiring issue;
On October 5, 2000, MG submitted a materially false, fictitious and
fraudulent EEO document to an EEO counselor, an Office of Special Counsel
(OSC) investigator and union officials;
On October 11, 2000, MG filed a false ULP complaint against complainant
alleging that the EEO complaint against MG was a form of harassment
and a civil rights violation;
On October 12, 2000, MG circulated throughout the medical center a
document regarding complainant being in arrears on his child support;
On October 19 and 24, 2000, MG falsely accused complainant of directing
security cameras to monitor him and others;
On October 24, 2000, MG questioned, harassed and interrupted
complainant's staff;
On October 25, 2000, MG suggested to the investigating officer that
complainant had something to do with MG's vehicle being stolen;
On October 31, 2000, MG made inappropriate and threatening remarks
about complainant's employment and told complainant's subordinate that
"your Chief is going to mess around and not make it off probation;"
On May 17, 2001, complainant learned that MG falsely told other employees
that complainant threatened to arrest MG;
On June 1, 2001, complainant was informed that he was being accused by
the union of placing security cameras in the women's restrooms;
On June 4, 2001, complainant was informed that the Vice President of the
union was spreading the "bathroom accusation" to others at the agency;
On June 4, 2001, complainant was informed that the union had posted,
on its bulletin board, a cartoon depicting women using the restroom
while cameras were watching them; and
On July 2, 2001, complainant learned that the 9th District Union
Representative (ML) had told one of complainant's subordinates (JB)
that he was harassing MG, failing to protect his safety, and engaging
in inappropriate behavior.
At the | Frederick K. Smith v. Department of Veterans Affairs
01A40925
September 28, 2005
.
Frederick K. Smith,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40925
Agency No. 200L-2000
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. § 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Chief, Police & Security, GS-12, at the agency's Medical Center,
Oklahoma City, Oklahoma facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on December 15, 2000, alleging that
he was subjected to a hostile work environment on the basis of reprisal
for prior EEO activity when:
(1) On September 20, 2000, a union official (MG) filed a false unfair
labor practice (ULP) complaint against complainant which alleged that
complainant improperly called a meeting to discuss union activities
and issues;
On September 21, 2000, MG filed a second false ULP complaint alleging
complainant improperly advised a union member not to seek assistance
from the union regarding a hiring issue;
On October 5, 2000, MG submitted a materially false, fictitious and
fraudulent EEO document to an EEO counselor, an Office of Special Counsel
(OSC) investigator and union officials;
On October 11, 2000, MG filed a false ULP complaint against complainant
alleging that the EEO complaint against MG was a form of harassment
and a civil rights violation;
On October 12, 2000, MG circulated throughout the medical center a
document regarding complainant being in arrears on his child support;
On October 19 and 24, 2000, MG falsely accused complainant of directing
security cameras to monitor him and others;
On October 24, 2000, MG questioned, harassed and interrupted
complainant's staff;
On October 25, 2000, MG suggested to the investigating officer that
complainant had something to do with MG's vehicle being stolen;
On October 31, 2000, MG made inappropriate and threatening remarks
about complainant's employment and told complainant's subordinate that
"your Chief is going to mess around and not make it off probation;"
On May 17, 2001, complainant learned that MG falsely told other employees
that complainant threatened to arrest MG;
On June 1, 2001, complainant was informed that he was being accused by
the union of placing security cameras in the women's restrooms;
On June 4, 2001, complainant was informed that the Vice President of the
union was spreading the "bathroom accusation" to others at the agency;
On June 4, 2001, complainant was informed that the union had posted,
on its bulletin board, a cartoon depicting women using the restroom
while cameras were watching them; and
On July 2, 2001, complainant learned that the 9th District Union
Representative (ML) had told one of complainant's subordinates (JB)
that he was harassing MG, failing to protect his safety, and engaging
in inappropriate behavior.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its Final Agency Decision (FAD), the agency concludes the above
allegations did, in fact, occur. In addition, the agency concludes
that MG was out to get complainant because complainant named him in
an EEO complaint and MG utilized his position as the union President
to create a hostile work environment by making numerous false
accusations against complainant and generally taking steps to defame
his reputation and character. In addition, the agency concluded that
while the evidence shows that mild personality conflicts between MG
and complainant originated prior to complainant's EEO activity (i.e.,
prior to September 15, 2000), the record also supports the finding that
MG initiated a series of allegations against complainant immediately
after he named MG in his EEO complaint.
Despite these findings, the agency concluded that "while complainant
has shown the harassing conduct by MG occurred, he has failed to show
that MG was acting on the part of management, he has failed to show that
management took no action to quell the harassment, and he has failed to
show that there is some basic legal principle permitting the assignment
of liability to management in this case."
On appeal, complainant generally contends that management had the ability
and was obligated to take steps to end the retaliation despite MG's
union status. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
The record reveals that in July 2000, the agency had an EEO on-site
review in response to racial tension and violence within the agency.
Following the EEO on-site review, the agency held town hall meetings so
that every employee could share their views on this issue. Complainant,
as the Chair of the Black Affairs (EEO) Committee of the Oklahoma
City Medical Center (BAC) attended the town hall meetings and told the
participants (which included MG and other union officials) that he did not
witness any racial violence in the workplace. Complainant also publicly
stated that he believed that a large source of any racial tension was
created by the American Federation of Government Employees, Local 2562,
AFL-CIO ("the Union). On September 14, 2000, the BAC held a meeting.
During that meeting, MG asserted that the credibility of the BAC was shaky
and that complainant was improperly using his connections with the front
office to promote the secretary in the Quality Management Service to an
Administrative Assistant position. MG also referred to BAC as a "social
club" with no authority to represent employees with EEO complaints.
On September 15, 2000, complainant initiated EEO contact and alleged
that MG was harassing him by making false, slanderous and defamatory
statements about him. Some time prior to September 20, 2000, MG was
informed of this EEO complaint, by the EEO counselor (HR). Thereafter,
on September 20, 2000, MG filed an ULP against complainant for calling a
meeting on August 3, 2000 to discuss union activities. On September 21,
2000, MG filed a second ULP against complainant for telling a bargaining
unit employee not to use the Union on an hiring issue. On September 22,
2000, MG filed an ULP against complainant because he would not turn over
to the Union the EEO Committee's recommendations to the Medical Center
Director. On October 3, 2000, another ULP was filed against complainant
for allegedly threatening the Union during a meeting on October 2, 2000.
On October 11, 2000, MG filed another ULP against complainant for filing
an EEO claim against MG.
In addition, on October 12, 2000, a child support document that MG
possessed previously,<1> was circulated among numerous employees.
The child support document identified complainant as failing to pay
child support and embarrassed complainant among his fellow co-workers
and supervisors. On numerous occasions in October 2000, MG spread
false rumors and accusations that complainant was using his staff and
security cameras to monitor MG. On October 25, 2000, MG reported to
the agency police that his car was stolen and accused complainant as
being responsible. On October 31, 2000, MG told one of complainant's
subordinates that "your chief is going to mess around and not make it off
of probation." In May 2001, MG circulated false rumors and accusations
that complainant threatened to arrest him.
In June 2001, MG circulated false rumors and accusations throughout
the agency that complainant was responsible for placing cameras in the
women's restroom. In addition, MG posted a cartoon depicting cameras
in a restroom on the Union's bulletin board. In addition, a sign was
posted in the women's restroom warning the women that it was possible
that they were being videotaped. The record shows that complainant was
bombarded with rumors and accusations on a continuous basis.
In order to prove harassment in retaliation for engaging protected
EEO activity, the complainant must show that: (1) he engaged in prior
EEO activity; (2) he was subjected to unwelcome conduct related to his
prior EEO activity; (3) the harassment complained of was based on his
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing
Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982).
Assuming, arguendo, that complainant has sufficiently proven elements
1, 2, 3, and 5, we must conclude that complainant has failed to prove
element 4. The Supreme Court has stated: "Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive
- is beyond Title VII's purview." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 22 (1993). In evaluating whether the conduct at issue was
sufficiently severe or pervasive to constitute a hostile work environment,
the Commission has noted that "[a] 'hostile environment' claim generally
requires a showing of a pattern of offensive conduct." See EEOC Policy
Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137
(March 19, 1990). Upon review of the record, we do not find evidence
sufficiently severe or pervasive to create an objectively hostile work
environment. Management is often the target of criticism and accusations,
which often turns out to be false. It is part of the job. Accordingly,
we do not find that MG's conduct herein creates an objectively hostile
work environment for complainant, even assuming such accusations were
false and intended to harass.
Accordingly, 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 (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 28, 2005
__________________
Date
1 On March 17, 1999, MG gave complainant a copy of the same child
support document. According to MG, the document was placed under the
door of the Union office on March 15, 1999, by some unknown person.
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481 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01985397.txt | 01985397.txt | TXT | text/plain | 13,172 | May 6, 2000 | Appeal Number: 01985397
Case Facts:
On July 3, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. §1614.405).
On April 13, 1998, complainant filed a formal complaint, alleging that
she was sexually harassed by her Supervisor when in December 1995, he
insisted that complainant have sexual relations with him as a condition
of employment. Complainant alleged that the discrimination continued for
fifteen (15) months, until she resigned. In her complaint, complainant
also asserted that immediately after the alleged incident occurred in
December 1995, she complained to an agency official who told her he
would "take care of the matter." According to complainant, nothing was
done and her complaint was turned over to the EEO Manager. Complainant
alleged that the EEO Manager was a friend of the accused Supervisor, and
that her complaint remained unprocessed. In a letter dated October 8,
1997, complainant wrote to the agency seeking attention on the matter.
The letter was forwarded to the EEO office and construed by the agency
as her initial EEO Counselor contact.
The agency dismissed the complainant's complaint for untimely EEO
counselor contact. Specifically, the agency stated that the official
whom complainant contacted in December 1995 ordered an investigation
and advised complainant of her right to pursue the matter through the
EEO process; and that an officer from the base legal office conducted
an investigation and also advised complainant of her right to contact
an EEO Counselor. According to the FAD, complainant declined to contact
the EEO Counselor.
On appeal, complainant reiterates that she unsuccessfully attempted
to initiate the EEO complaint process at the time the alleged incident
of sexual harassment commenced in December 1995. In support of this
assertion, complainant submits an affidavit from a former EEO Manager
who had been associated with the agency; and who stated that complainant
had informed her in September 1997, that she contacted agency officials
contemporaneous with the alleged incidents of sexual harassment.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as
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.
In the instant case, the agency's decision to dismiss the complaint for
untimely EEO Counselor contact was predicated upon a determination that
even though the alleged harassment occurred in December 1995, complainant
did not contact an EEO Counselor until October 1997. The agency,
moreover, asserts that in December 1995, complainant approached an agency
official on the matter of purported harassment; that in December 1995,
the agency official advised complainant to pursue the matter through
the agency complaint process; and that despite having been so advised,
complainant did not contact an EEO Counselor at that time.
Given the present record, we are unable to ascertain whether complainant
was advised to pursue the EEO complaint process in December 1995;
whether she actually pursued the EEO complaint process in December 1995,
as she has asserted on appeal; or whether complainant first initiated
EEO Counselor contact in October 1997, as determined by the agency.
Final Decision:
Accordingly, the agency's decision to dismiss the instant complaint is VACATED. | Linda O. Smith v. Department of the Air Force
01985397
May 6, 2000
Linda O. Smith, )
Complainant, )
)
v. )
) Appeal No. 01985397
F. Whitten Peters, ) Agency No. OD1C970119
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On July 3, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. §1614.405).
On April 13, 1998, complainant filed a formal complaint, alleging that
she was sexually harassed by her Supervisor when in December 1995, he
insisted that complainant have sexual relations with him as a condition
of employment. Complainant alleged that the discrimination continued for
fifteen (15) months, until she resigned. In her complaint, complainant
also asserted that immediately after the alleged incident occurred in
December 1995, she complained to an agency official who told her he
would "take care of the matter." According to complainant, nothing was
done and her complaint was turned over to the EEO Manager. Complainant
alleged that the EEO Manager was a friend of the accused Supervisor, and
that her complaint remained unprocessed. In a letter dated October 8,
1997, complainant wrote to the agency seeking attention on the matter.
The letter was forwarded to the EEO office and construed by the agency
as her initial EEO Counselor contact.
The agency dismissed the complainant's complaint for untimely EEO
counselor contact. Specifically, the agency stated that the official
whom complainant contacted in December 1995 ordered an investigation
and advised complainant of her right to pursue the matter through the
EEO process; and that an officer from the base legal office conducted
an investigation and also advised complainant of her right to contact
an EEO Counselor. According to the FAD, complainant declined to contact
the EEO Counselor.
On appeal, complainant reiterates that she unsuccessfully attempted
to initiate the EEO complaint process at the time the alleged incident
of sexual harassment commenced in December 1995. In support of this
assertion, complainant submits an affidavit from a former EEO Manager
who had been associated with the agency; and who stated that complainant
had informed her in September 1997, that she contacted agency officials
contemporaneous with the alleged incidents of sexual harassment.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as 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.
In the instant case, the agency's decision to dismiss the complaint for
untimely EEO Counselor contact was predicated upon a determination that
even though the alleged harassment occurred in December 1995, complainant
did not contact an EEO Counselor until October 1997. The agency,
moreover, asserts that in December 1995, complainant approached an agency
official on the matter of purported harassment; that in December 1995,
the agency official advised complainant to pursue the matter through
the agency complaint process; and that despite having been so advised,
complainant did not contact an EEO Counselor at that time.
Given the present record, we are unable to ascertain whether complainant
was advised to pursue the EEO complaint process in December 1995;
whether she actually pursued the EEO complaint process in December 1995,
as she has asserted on appeal; or whether complainant first initiated
EEO Counselor contact in October 1997, as determined by the agency.
Accordingly, the agency's decision to dismiss the instant complaint is
VACATED. Complainant's complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
Finally, the Commission notes that the record reveals that the agency
defined complainant's complaint too narrowly. The Counselor's Report
includes claims of a pattern of sexual harassment and constructive
discharge. Although the formal complaint alleged that the sexual
harassment began in December 1995, continued for fifteen months, and
resulted in complainant's resignation, the FAD only addressed the December
1995 incident. Therefore, the Commission finds that the complaint must
be remanded to the agency for consideration of these additional issues.
The agency's decision dismissing the complaint is VACATED, and REMANDED
for a supplemental investigation and determination as ORDERED below.
ORDER
The agency is ORDERED to conduct a supplemental investigation regarding
the matters raised by complainant, as redefined in our decision.
The agency shall determine whether complainant was advised to go to an EEO
Counselor by the agency official whom complainant purportedly contacted
in December 1995; whether complainant actually pursued the EEO complaint
process in December 1995, if she was so advised; or whether complainant
initiated EEO Counselor contact at some later date, i.e., October 1997, as
determined by the agency in its final decision. The agency shall include
copies of all documents relied upon in reaching such determination,
including any affidavits from agency officials who may have advised
complainant to pursue the EEO complaint process. Thereafter, the
agency shall issue a final decision or accept complainant's complaint
for investigation. The supplemental investigation and issuance of the
final decision or notice of processing must be completed within thirty
(30) calendar days of the date that this decision becomes final.
A copy of a notice of processing or any new final agency decision 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 6, 2000
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov. | [
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"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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482 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120070066.txt | 0120070066.txt | TXT | text/plain | 13,761 | Sherry Cain, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. | August 14, 2006 | Appeal Number: 0120070066
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 14, 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.
On March 14, 2006, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On July 31, 2006, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to discrimination
on the bases of sex, disability, and in reprisal for prior EEO activity.
In its August 14, 2006 final decision, the agency framed complainant's
claims in the following fashion:
(a) Your term position (Heavy Mobile Equipment Mechanic, WG-5803-05)
was not extended. (You alleged that it was not extended because she were
[injured] on the job, but never placed on light duty) and [sic] Violation
of Health Insurance Portability Accountability Act (HIPAA) when management
allowed a co-worker to go [through] your medical record; and
(b) Retaliation for filing grievance with the union and sexual harassment
by your supervisor ....
The agency dismissed claim (a) on the grounds of untimely EEO
Counselor contact. Specifically, the agency determined that the alleged
discriminatory event occurred on March 8, 2006, and that complainant's
initial EEO contact on May 8, 2006 was beyond the forty-five day time
limitation. The agency dismissed claim (b) on the grounds that these
matters were not raised with an EEO Counselor and are not like or related
to a matter that has been brought to the attention of an EEO Counselor.
On appeal, complainant, through her attorney, contends that her EEO
contact was timely. Complainant states that on March 14, 2006, she met
with an EEO Counselor. Complainant further states, "After this session,
[Complainant] subjectively believed that the appropriate contacts had been
made, and that her contacts were timely. Although this contact occurred
on March 14, 2006, the records of the agency show that the initial contact
did not occur until May 8, 2006. This date is incorrect, and Complainant
has not had ample opportunity to make a proper record of the error."
In response, the agency restates its argument that complainant's complaint
should be dismissed on the grounds of untimely EEO Counselor contact; and
that complainant raised matters that had not been brought to the attention
of EEO Counselor and are not like or related to a matter that had been
brought to the attention of an EEO Counselor. The agency further argues
that the instant complaint should be dismissed for untimely filing.
First, the Commission determines that the record supports a finding that
the instant complaint was timely filed. We note that the record reflects
that after complainant received the Notice of Right to File a Formal
Complaint on July 17, 2006, she filed the instant formal complaint on July
31, 2006, within the fifteen (15) calendar day of receiving the Notice.
Thus, we will review the agency's dismissal of the instant complaint on
procedural grounds.
Claim (a)
Legal Analysis:
the Commission determines that the record supports a finding that
the instant complaint was timely filed. We note that the record reflects
that after complainant received the Notice of Right to File a Formal
Complaint on July 17, 2006, she filed the instant formal complaint on July
31, 2006, within the fifteen (15) calendar day of receiving the Notice.
Thus, we will review the agency's dismissal of the instant complaint on
procedural grounds.
Claim (a)
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 further 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. 29 C.F.R. § 1614.105(a)(2).
On appeal, complainant argues that her EEO contact was timely. The record
contains a copy of a document titled, "Information Inquiry Summary, DA
Form 7509" signed and dated March 14, 2006 by an identified EEO official
and complainant. In Box 9 of the subject form, we note that the matter
of concern identified was "failure to extend and Privacy Act issues."
Complainant's initial EEO contact was on March 14, 2006, following the
March 8, 2006 alleged discriminatory incident when she was notified
by a letter that her term appointment would not be exceeded and that a
co-worker looked into her medical records, and therefore was within the
time limitation. Consequently, we determine that complainant's initial
EEO Counselor contact was not on May 8, 2006, as determined by the agency.
Instead, we determine that complainant initiated EEO contact on March 14,
2006, thereby rendering timely claim raised in the instant complaint.
Claim (b)
The Commission finds that the agency properly dismissed claim (b) for
failure to raise this matter with an EEO Counselor and the matter not
being like or related to a matter that was raised with an EEO Counselor.
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 review of the record reflects that complainant first raised her claims
of being subjected to retaliation for filing a grievance with the union
and sexual harassment by her supervisor in her formal EEO complaint.
The record is devoid of evidence that complainant previously raised these
matters with an EEO Counselor. In addition, complainant has not shown
that these matters are like or related to the other matters she raised
during counseling.
Final Decision:
Accordingly, we AFFIRM the agency's final decision dismissing claim (b). The agency's decision to dismiss claim (a) was improper, and is hereby REVERSED. | Sherry Cain,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070066
Agency No. ARRRAD06MAY01847
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 14, 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.
On March 14, 2006, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On July 31, 2006, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to discrimination
on the bases of sex, disability, and in reprisal for prior EEO activity.
In its August 14, 2006 final decision, the agency framed complainant's
claims in the following fashion:
(a) Your term position (Heavy Mobile Equipment Mechanic, WG-5803-05)
was not extended. (You alleged that it was not extended because she were
[injured] on the job, but never placed on light duty) and [sic] Violation
of Health Insurance Portability Accountability Act (HIPAA) when management
allowed a co-worker to go [through] your medical record; and
(b) Retaliation for filing grievance with the union and sexual harassment
by your supervisor ....
The agency dismissed claim (a) on the grounds of untimely EEO
Counselor contact. Specifically, the agency determined that the alleged
discriminatory event occurred on March 8, 2006, and that complainant's
initial EEO contact on May 8, 2006 was beyond the forty-five day time
limitation. The agency dismissed claim (b) on the grounds that these
matters were not raised with an EEO Counselor and are not like or related
to a matter that has been brought to the attention of an EEO Counselor.
On appeal, complainant, through her attorney, contends that her EEO
contact was timely. Complainant states that on March 14, 2006, she met
with an EEO Counselor. Complainant further states, "After this session,
[Complainant] subjectively believed that the appropriate contacts had been
made, and that her contacts were timely. Although this contact occurred
on March 14, 2006, the records of the agency show that the initial contact
did not occur until May 8, 2006. This date is incorrect, and Complainant
has not had ample opportunity to make a proper record of the error."
In response, the agency restates its argument that complainant's complaint
should be dismissed on the grounds of untimely EEO Counselor contact; and
that complainant raised matters that had not been brought to the attention
of EEO Counselor and are not like or related to a matter that had been
brought to the attention of an EEO Counselor. The agency further argues
that the instant complaint should be dismissed for untimely filing.
First, the Commission determines that the record supports a finding that
the instant complaint was timely filed. We note that the record reflects
that after complainant received the Notice of Right to File a Formal
Complaint on July 17, 2006, she filed the instant formal complaint on July
31, 2006, within the fifteen (15) calendar day of receiving the Notice.
Thus, we will review the agency's dismissal of the instant complaint on
procedural grounds.
Claim (a)
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 further 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. 29 C.F.R. § 1614.105(a)(2).
On appeal, complainant argues that her EEO contact was timely. The record
contains a copy of a document titled, "Information Inquiry Summary, DA
Form 7509" signed and dated March 14, 2006 by an identified EEO official
and complainant. In Box 9 of the subject form, we note that the matter
of concern identified was "failure to extend and Privacy Act issues."
Complainant's initial EEO contact was on March 14, 2006, following the
March 8, 2006 alleged discriminatory incident when she was notified
by a letter that her term appointment would not be exceeded and that a
co-worker looked into her medical records, and therefore was within the
time limitation. Consequently, we determine that complainant's initial
EEO Counselor contact was not on May 8, 2006, as determined by the agency.
Instead, we determine that complainant initiated EEO contact on March 14,
2006, thereby rendering timely claim raised in the instant complaint.
Claim (b)
The Commission finds that the agency properly dismissed claim (b) for
failure to raise this matter with an EEO Counselor and the matter not
being like or related to a matter that was raised with an EEO Counselor.
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 review of the record reflects that complainant first raised her claims
of being subjected to retaliation for filing a grievance with the union
and sexual harassment by her supervisor in her formal EEO complaint.
The record is devoid of evidence that complainant previously raised these
matters with an EEO Counselor. In addition, complainant has not shown
that these matters are like or related to the other matters she raised
during counseling.
Accordingly, we AFFIRM the agency's final decision dismissing claim (b).
The agency's decision to dismiss claim (a) was improper, and is hereby
REVERSED. Claim (a) 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 claim (claim (a))
in accordance with 29 C.F.R. § 1614.108 et seq. The agency shall
acknowledge to the complainant that it has received the remanded claim
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 77960,
Washington, D.C. 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 (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 24, 2008
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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483 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120120747.txt | 0120120747.txt | TXT | text/plain | 10,498 | Kimberly S. Broadwater, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. | October 7, 2010 | Appeal Number: 0120120747
Background:
Complainant filed a formal complaint dated September 13, 2010, alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of color (white) when the Deputy Chief of Staff for Personnel:
1. Denied Complainant's request for a non-competitive reassignment from Program Analyst, YA-0343-02, GS-11 level to a Human Resource Specialist, YA-201-02, GS-13 level on March 24, 2010;
2. Approved the non-competitive reassignment of Person A to a Human Resources Specialist, YA-201-02, GS-13 Level position on December 6, 2009. This action denied Complainant the opportunity to compete for the position;
3. Approved the non-competitive reassignment of Person B to a Team Leader position, YA-343-02, GS-13 Level, in the Recruitment Office on November 8, 2009. This action denied Complainant the opportunity to compete for the position;
4. Removed the Deployment Program, the VERAA/ISP Program, and the Intern/Student Program from Complainant's duties and responsibilities in November 2009. The Deputy Chief of Staff for Personnel also approved the non-competitive reassignments of Person A as the Program Manager for Deployments and the VERAA/SIP Program; and Person C to the Program Manager for the Intern/Student Program; and
5. Approved the non-competitive reassignment of Person D to a Career Program position, 201 series, Human Resource Specialist, GS-13 level and gave her a 5% pay increase on April 26, 2009. This action denied Complainant the opportunity to compete for the position.
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 told the EEO Counselor that the reason for delayed contact beyond the 45-day time frame was because she was trying to work the issue out with her supervisor. The Agency noted the correspondence with the supervisor ended in March 2010, and stated that contact with an EEO Counselor should have been initiated some time prior to May 10, 2010. The Agency noted that Complainant's initial contact with an EEO official did not occur until July 27, 2010, which was between 124 to 453 days after the alleged discriminatory incidents occurred.
On appeal, Complainant states that she tried to resolve the issue with her supervisor and then went to the Office of the Inspector General (IG) to address the issue. Complainant states that she had not been involved with this type of issue before and was not sure where to go. Complainant claims that once the IG told her on June 1, 2010, that this was a case for EEO to handle, it was at that time she felt she had been subject to discrimination. Complainant states that on June 6, 2010, she contacted Person X (Equal Employment Manager) and said she felt she was being subjected to discrimination.
In response to Complainant's appeal, the Agency argues that Complainant was clearly on notice and bound to explore the basis for actions that went back more than a year that she believed were unsatisfactory. The Agency argues that Complainant should have developed a reasonable suspicion of discrimination due to any one of the disputed reassignments and should have filed within the 45-day period of those disputed actions. The Agency notes that even if Complainant's June 7, 2010 electronic mail message to the Equal Employment Manager constituted initial EEO Counselor contact, this was still outside the 45-day filing period.
Legal Analysis:
the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant filed a formal complaint dated September 13, 2010, alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of color (white) when the Deputy Chief of Staff for Personnel:
1. Denied Complainant's request for a non-competitive reassignment from Program Analyst, YA-0343-02, GS-11 level to a Human Resource Specialist, YA-201-02, GS-13 level on March 24, 2010;
2. Approved the non-competitive reassignment of Person A to a Human Resources Specialist, YA-201-02, GS-13 Level position on December 6, 2009. This action denied Complainant the opportunity to compete for the position;
3. Approved the non-competitive reassignment of Person B to a Team Leader position, YA-343-02, GS-13 Level, in the Recruitment Office on November 8, 2009. This action denied Complainant the opportunity to compete for the position;
4. Removed the Deployment Program, the VERAA/ISP Program, and the Intern/Student Program from Complainant's duties and responsibilities in November 2009. The Deputy Chief of Staff for Personnel also approved the non-competitive reassignments of Person A as the Program Manager for Deployments and the VERAA/SIP Program; and Person C to the Program Manager for the Intern/Student Program; and
5. Approved the non-competitive reassignment of Person D to a Career Program position, 201 series, Human Resource Specialist, GS-13 level and gave her a 5% pay increase on April 26, 2009. This action denied Complainant the opportunity to compete for the position.
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 told the EEO Counselor that the reason for delayed contact beyond the 45-day time frame was because she was trying to work the issue out with her supervisor. The Agency noted the correspondence with the supervisor ended in March 2010, and stated that contact with an EEO Counselor should have been initiated some time prior to May 10, 2010. The Agency noted that Complainant's initial contact with an EEO official did not occur until July 27, 2010, which was between 124 to 453 days after the alleged discriminatory incidents occurred.
On appeal, Complainant states that she tried to resolve the issue with her supervisor and then went to the Office of the Inspector General (IG) to address the issue. Complainant states that she had not been involved with this type of issue before and was not sure where to go. Complainant claims that once the IG told her on June 1, 2010, that this was a case for EEO to handle, it was at that time she felt she had been subject to discrimination. Complainant states that on June 6, 2010, she contacted Person X (Equal Employment Manager) and said she felt she was being subjected to discrimination.
In response to Complainant's appeal, the Agency argues that Complainant was clearly on notice and bound to explore the basis for actions that went back more than a year that she believed were unsatisfactory. The Agency argues that Complainant should have developed a reasonable suspicion of discrimination due to any one of the disputed reassignments and should have filed within the 45-day period of those disputed actions. The Agency notes that even if Complainant's June 7, 2010 electronic mail message to the Equal Employment Manager constituted initial EEO Counselor contact, this was still outside the 45-day filing 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 the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond (his 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 between April 2009 and March 24, 2010. The record reveals that Complainant initially chose to pursue her complaint regarding the identified issues with the Agency and then with the IG prior to initiating EEO Counselor contact. Despite Complainant's contention that she was not sure where to go to pursue her complaint, the record reveals that in a March 24, 2010 electronic mail message, Complainant was informed by the Deputy Chief of Staff for Personnel that she had other avenues to pursue her concerns, including EEO. In a March 24, 2010 electronic mail message, Complainant stated "I am fully aware of avenues available to me, EEO, IG etc." In a responsive electronic mail message sent on March 24, 2010, the Deputy Chief of Staff for Personnel agreed to arrange a meeting with Complainant to address her concerns. However, in a March 25, 2010 electronic mail message, Complainant stated that at that time she preferred to allow the IG/EEO to work the issues. The record reveals that Complainant did not initiate her EEO complaint until at the earliest June 7, 2010, which was beyond the applicable limitations period. Even using a June 6, 2010 date Complainant references does not render the EEO Counselor contact as timely. There is no indication that the Agency misled or dissuaded Complainant in any way regarding her right to contact an EEO Counselor. Nor has Complainant claimed 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 provide 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.
Final Decision:
Accordingly, the Agency's final decision is AFFIRMED. | Kimberly S. Broadwater,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120747
Agency No. ARAPG10JUN03832
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated October 7, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant filed a formal complaint dated September 13, 2010, alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of color (white) when the Deputy Chief of Staff for Personnel:
1. Denied Complainant's request for a non-competitive reassignment from Program Analyst, YA-0343-02, GS-11 level to a Human Resource Specialist, YA-201-02, GS-13 level on March 24, 2010;
2. Approved the non-competitive reassignment of Person A to a Human Resources Specialist, YA-201-02, GS-13 Level position on December 6, 2009. This action denied Complainant the opportunity to compete for the position;
3. Approved the non-competitive reassignment of Person B to a Team Leader position, YA-343-02, GS-13 Level, in the Recruitment Office on November 8, 2009. This action denied Complainant the opportunity to compete for the position;
4. Removed the Deployment Program, the VERAA/ISP Program, and the Intern/Student Program from Complainant's duties and responsibilities in November 2009. The Deputy Chief of Staff for Personnel also approved the non-competitive reassignments of Person A as the Program Manager for Deployments and the VERAA/SIP Program; and Person C to the Program Manager for the Intern/Student Program; and
5. Approved the non-competitive reassignment of Person D to a Career Program position, 201 series, Human Resource Specialist, GS-13 level and gave her a 5% pay increase on April 26, 2009. This action denied Complainant the opportunity to compete for the position.
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 told the EEO Counselor that the reason for delayed contact beyond the 45-day time frame was because she was trying to work the issue out with her supervisor. The Agency noted the correspondence with the supervisor ended in March 2010, and stated that contact with an EEO Counselor should have been initiated some time prior to May 10, 2010. The Agency noted that Complainant's initial contact with an EEO official did not occur until July 27, 2010, which was between 124 to 453 days after the alleged discriminatory incidents occurred.
On appeal, Complainant states that she tried to resolve the issue with her supervisor and then went to the Office of the Inspector General (IG) to address the issue. Complainant states that she had not been involved with this type of issue before and was not sure where to go. Complainant claims that once the IG told her on June 1, 2010, that this was a case for EEO to handle, it was at that time she felt she had been subject to discrimination. Complainant states that on June 6, 2010, she contacted Person X (Equal Employment Manager) and said she felt she was being subjected to discrimination.
In response to Complainant's appeal, the Agency argues that Complainant was clearly on notice and bound to explore the basis for actions that went back more than a year that she believed were unsatisfactory. The Agency argues that Complainant should have developed a reasonable suspicion of discrimination due to any one of the disputed reassignments and should have filed within the 45-day period of those disputed actions. The Agency notes that even if Complainant's June 7, 2010 electronic mail message to the Equal Employment Manager constituted initial EEO Counselor contact, this was still outside the 45-day filing 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 the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond (his 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 between April 2009 and March 24, 2010. The record reveals that Complainant initially chose to pursue her complaint regarding the identified issues with the Agency and then with the IG prior to initiating EEO Counselor contact. Despite Complainant's contention that she was not sure where to go to pursue her complaint, the record reveals that in a March 24, 2010 electronic mail message, Complainant was informed by the Deputy Chief of Staff for Personnel that she had other avenues to pursue her concerns, including EEO. In a March 24, 2010 electronic mail message, Complainant stated "I am fully aware of avenues available to me, EEO, IG etc." In a responsive electronic mail message sent on March 24, 2010, the Deputy Chief of Staff for Personnel agreed to arrange a meeting with Complainant to address her concerns. However, in a March 25, 2010 electronic mail message, Complainant stated that at that time she preferred to allow the IG/EEO to work the issues. The record reveals that Complainant did not initiate her EEO complaint until at the earliest June 7, 2010, which was beyond the applicable limitations period. Even using a June 6, 2010 date Complainant references does not render the EEO Counselor contact as timely. There is no indication that the Agency misled or dissuaded Complainant in any way regarding her right to contact an EEO Counselor. Nor has Complainant claimed 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 provide 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 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
October 25, 2012
__________________
Date
01-2012-0747
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484 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101312.r.txt | 0120101312.r.txt | TXT | text/plain | 8,512 | Michael B. Lynch, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency. | January 13, 2010 | Appeal Number: 0120101312
Background:
In his formal complaint dated November 17, 2009, complainant, a
Supervisory Internal Revenue Agent with the agency alleged that the
agency discriminated against him on the bases of race (white) and sex
(male) when:
on May 29, 2009, he was not selected for the position of Supervisory
Internal Revenue Agent/ Global Team Manager, IR-0512-3.
The record reflects that Complainant was one of four managers with
purportedly over twenty years of managerial experience who made the "Best
Qualified" list, but was not ultimately selected for the subject position.
When an African-American woman with purportedly less experience was
chosen to fill the vacancy, Complainant suspected that his non-selection
was due to race and sex.
In the instant final decision, the Agency dismissed the formal complaint
on the grounds of untimely EEO Counselor contact. The agency stated that
Complainant received notice of his non-selection on June 1, 2009, but
that he did not initiate EEO counseling on that matter until September 8,
2009, beyond the forty-five-day time limit set by the Regulations.
The Agency had sought clarification from Complainant for his delay
in contacting the Counselor. Complainant responded, stating that
following the agency's May 29, 2009, notification of his non-selection,
he and three other white males, who had similarly not been selected for
the same position met on June 10, 2009 and they determined that their
non-selections were discriminatory. Complainant asserts that when one
of the four non-selected individuals contacted an EEO Counselor on July
1, 2009, that employee told the EEO Counselor that he was speaking
to her for on behalf of himself and the three others who also were
non-selected. Complainant clams that the EEO Counselor misinformed that
employee as to their standing to file an EEO complaint, and that because
they all are white males, they are not members of a protected class
except for being over the age of 50; and that because the selectee was
over the age of 50, there was no ground to pursue the EEO complaint
process. Complainant claims that they further sought legal guidance
and in July 2009 they hired an attorney who, on August 21, 2009,
advised them that each should contact an EEO Counselor to pursue their
EEO complaint process. Based on that advice, Complainant contacted the
Counselor on September 8, 2009. Under the circumstance, Complainant claims
that because he and co-workers were misdirected by the EEO Counselor as
to their standing to pursue the EEO complaint process, any delay for
contacting the Counselor should be waived.
Legal Analysis:
The Commission accepts the appeal in accordance with 29 C.F.R.
§ 1614.405.
BACKGROUND
In his formal complaint dated November 17, 2009, complainant, a
Supervisory Internal Revenue Agent with the agency alleged that the
agency discriminated against him on the bases of race (white) and sex
(male) when:
on May 29, 2009, he was not selected for the position of Supervisory
Internal Revenue Agent/ Global Team Manager, IR-0512-3.
The record reflects that Complainant was one of four managers with
purportedly over twenty years of managerial experience who made the "Best
Qualified" list, but was not ultimately selected for the subject position.
When an African-American woman with purportedly less experience was
chosen to fill the vacancy, Complainant suspected that his non-selection
was due to race and sex.
In the instant final decision, the Agency dismissed the formal complaint
on the grounds of untimely EEO Counselor contact. The agency stated that
Complainant received notice of his non-selection on June 1, 2009, but
that he did not initiate EEO counseling on that matter until September 8,
2009, beyond the forty-five-day time limit set by the Regulations.
The Agency had sought clarification from Complainant for his delay
in contacting the Counselor. Complainant responded, stating that
following the agency's May 29, 2009, notification of his non-selection,
he and three other white males, who had similarly not been selected for
the same position met on June 10, 2009 and they determined that their
non-selections were discriminatory. Complainant asserts that when one
of the four non-selected individuals contacted an EEO Counselor on July
1, 2009, that employee told the EEO Counselor that he was speaking
to her for on behalf of himself and the three others who also were
non-selected. Complainant clams that the EEO Counselor misinformed that
employee as to their standing to file an EEO complaint, and that because
they all are white males, they are not members of a protected class
except for being over the age of 50; and that because the selectee was
over the age of 50, there was no ground to pursue the EEO complaint
process. Complainant claims that they further sought legal guidance
and in July 2009 they hired an attorney who, on August 21, 2009,
advised them that each should contact an EEO Counselor to pursue their
EEO complaint process. Based on that advice, Complainant contacted the
Counselor on September 8, 2009. Under the circumstance, Complainant claims
that because he and co-workers were misdirected by the EEO Counselor as
to their standing to pursue the EEO complaint process, any delay for
contacting the Counselor should be waived.
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) and 107(a)(2).
The record discloses that the alleged discriminatory event occurred on or
about June 1, 2009, but that complainant did not initiate contact with an
EEO Counselor until September 8, 2009, which is beyond the forty-five (45)
day limitation period. In the instant case, the Commission does not find
that Complainant had been misinformed by the agency. Complainant does
not dispute that his initial EEO contact occurred in September 2009,
or that he was personally misinformed by the EEO Counselor regarding the
EEO process. The Commission notes, moreover, that the record contains
a statement from the Counselor stating that she gave Complainant's
co-worker the correct advice that each of affected employees should
contact the Counselor to pursue their respective complaints.
On appeal, Complainant has not submitted any persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact
Final Decision:
Accordingly, the agency's final decision dismissing Complainant's complaint is AFFIRMED. | Michael B. Lynch,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120101312
Agency No. IRS090915F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated January 13, 2010, 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. The Commission accepts the appeal in accordance with 29 C.F.R.
§ 1614.405.
BACKGROUND
In his formal complaint dated November 17, 2009, complainant, a
Supervisory Internal Revenue Agent with the agency alleged that the
agency discriminated against him on the bases of race (white) and sex
(male) when:
on May 29, 2009, he was not selected for the position of Supervisory
Internal Revenue Agent/ Global Team Manager, IR-0512-3.
The record reflects that Complainant was one of four managers with
purportedly over twenty years of managerial experience who made the "Best
Qualified" list, but was not ultimately selected for the subject position.
When an African-American woman with purportedly less experience was
chosen to fill the vacancy, Complainant suspected that his non-selection
was due to race and sex.
In the instant final decision, the Agency dismissed the formal complaint
on the grounds of untimely EEO Counselor contact. The agency stated that
Complainant received notice of his non-selection on June 1, 2009, but
that he did not initiate EEO counseling on that matter until September 8,
2009, beyond the forty-five-day time limit set by the Regulations.
The Agency had sought clarification from Complainant for his delay
in contacting the Counselor. Complainant responded, stating that
following the agency's May 29, 2009, notification of his non-selection,
he and three other white males, who had similarly not been selected for
the same position met on June 10, 2009 and they determined that their
non-selections were discriminatory. Complainant asserts that when one
of the four non-selected individuals contacted an EEO Counselor on July
1, 2009, that employee told the EEO Counselor that he was speaking
to her for on behalf of himself and the three others who also were
non-selected. Complainant clams that the EEO Counselor misinformed that
employee as to their standing to file an EEO complaint, and that because
they all are white males, they are not members of a protected class
except for being over the age of 50; and that because the selectee was
over the age of 50, there was no ground to pursue the EEO complaint
process. Complainant claims that they further sought legal guidance
and in July 2009 they hired an attorney who, on August 21, 2009,
advised them that each should contact an EEO Counselor to pursue their
EEO complaint process. Based on that advice, Complainant contacted the
Counselor on September 8, 2009. Under the circumstance, Complainant claims
that because he and co-workers were misdirected by the EEO Counselor as
to their standing to pursue the EEO complaint process, any delay for
contacting the Counselor should be waived.
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) and 107(a)(2).
The record discloses that the alleged discriminatory event occurred on or
about June 1, 2009, but that complainant did not initiate contact with an
EEO Counselor until September 8, 2009, which is beyond the forty-five (45)
day limitation period. In the instant case, the Commission does not find
that Complainant had been misinformed by the agency. Complainant does
not dispute that his initial EEO contact occurred in September 2009,
or that he was personally misinformed by the EEO Counselor regarding the
EEO process. The Commission notes, moreover, that the record contains
a statement from the Counselor stating that she gave Complainant's
co-worker the correct advice that each of affected employees should
contact the Counselor to pursue their respective complaints.
On appeal, Complainant has not submitted any persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact Accordingly, the agency's final decision dismissing
Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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
July 21, 2010
__________________
Date
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485 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100690.txt | 0120100690.txt | TXT | text/plain | 8,810 | Suzanne T. Daniels, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. | November 30, 2009 | Appeal Number: 0120100690
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the bases of race (Asian American) and reprisal for prior protected EEO activity when she learned on July 9, 2009 that she did not receive a monetary award for fiscal year October 1, 2007 through September 30, 2008.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 30, 2009, 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.
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 she
was subjected to discrimination on the bases of race (Asian American)
and reprisal for prior protected EEO activity when she learned on July 9,
2009 that she did not receive a monetary award for fiscal year October 1,
2007 through September 30, 2008.
The record in this matter indicates that complainant learned during a
staff meeting on July 9, 2009 that she would not be receiving a monetary
award for the previous fiscal year. On August 12, 2009, complainant
emailed her supervisor inquiring why she did not receive an award.
On appeal, complainant states that when she did not receive a response
from her supervisor, she contacted the agency's EEO office on September
2, 2009 regarding her concerns. Complainant contends that because she
"was following the chain of command" when she emailed her supervisor,
and because her supervisor failed to respond to her inquiry, her EEO
contact on September 2, 2009 should be deemed timely.
The record discloses that the alleged discriminatory event occurred
on July 9, 2009, but complainant did not initiate contact with an EEO
Counselor until September 2, 2009, which is beyond the forty-five (45)
day limitation period. 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 the agency properly dismissed
complainant's complaint as untimely. Specifically, the Commission
determines that complainant had or should have had a reasonable suspicion
of discrimination on July 9, 2009 when she learned at a staff meeting
that she would not be receiving a monetary award for the past fiscal year.
The Commission further notes that complainant's email to her supervisor on
August 12, 2009 did not satisfy EEOC Regulations regarding EEO contact.
We note that while a complainant may satisfy the requirement of EEO
Counselor contact by contacting an agency official logically connected
with the EEO process and by exhibiting an intent to begin the EEO process,
complainant's supervisor in this matter, was not logically connected with
the EEO process. See Allen v. United States Postal Service, EEO Request
No. 05950933 (July 8, 1996). Even assuming that he was logically connected
with the EEO process, complainant did not exhibit any intent to begin
the EEO process prior to contacting the EEO Counselor on September 2,
2009 regarding the alleged discriminatory event occurring on July 9, 2009.
Moreover, we note that complainant has not alleged that she was unaware of
the time limitations for seeking EEO counseling or that she was prevented
by reasons beyond her control from contacting an EEO Counselor in a
timely manner. Consequently, the Commission finds that no persuasive
arguments or evidence have been presented by complainant to warrant an
extension of the time limit for initiating EEO Counselor contact.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is affirmed. | Suzanne T. Daniels,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100690
Agency No. DAL090853SSA
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 30, 2009, 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.
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 she
was subjected to discrimination on the bases of race (Asian American)
and reprisal for prior protected EEO activity when she learned on July 9,
2009 that she did not receive a monetary award for fiscal year October 1,
2007 through September 30, 2008.
The record in this matter indicates that complainant learned during a
staff meeting on July 9, 2009 that she would not be receiving a monetary
award for the previous fiscal year. On August 12, 2009, complainant
emailed her supervisor inquiring why she did not receive an award.
On appeal, complainant states that when she did not receive a response
from her supervisor, she contacted the agency's EEO office on September
2, 2009 regarding her concerns. Complainant contends that because she
"was following the chain of command" when she emailed her supervisor,
and because her supervisor failed to respond to her inquiry, her EEO
contact on September 2, 2009 should be deemed timely.
The record discloses that the alleged discriminatory event occurred
on July 9, 2009, but complainant did not initiate contact with an EEO
Counselor until September 2, 2009, which is beyond the forty-five (45)
day limitation period. 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 the agency properly dismissed
complainant's complaint as untimely. Specifically, the Commission
determines that complainant had or should have had a reasonable suspicion
of discrimination on July 9, 2009 when she learned at a staff meeting
that she would not be receiving a monetary award for the past fiscal year.
The Commission further notes that complainant's email to her supervisor on
August 12, 2009 did not satisfy EEOC Regulations regarding EEO contact.
We note that while a complainant may satisfy the requirement of EEO
Counselor contact by contacting an agency official logically connected
with the EEO process and by exhibiting an intent to begin the EEO process,
complainant's supervisor in this matter, was not logically connected with
the EEO process. See Allen v. United States Postal Service, EEO Request
No. 05950933 (July 8, 1996). Even assuming that he was logically connected
with the EEO process, complainant did not exhibit any intent to begin
the EEO process prior to contacting the EEO Counselor on September 2,
2009 regarding the alleged discriminatory event occurring on July 9, 2009.
Moreover, we note that complainant has not alleged that she was unaware of
the time limitations for seeking EEO counseling or that she was prevented
by reasons beyond her control from contacting an EEO Counselor in a
timely manner. Consequently, the Commission finds that no persuasive
arguments or evidence have been presented by complainant to warrant an
extension of the time limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29
U.S.C. §§ 791, 794(c). The grant or denial of the request is within the
sole discretion of the Court. Filing a request for an attorney with the
Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 27, 2010
__________________
Date
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"29 C.F.R. § 1614.107(a)",
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"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
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486 | https://www.eeoc.gov/sites/default/files/decisions/2024_02_05/2023004388.pdf | 2023004388.pdf | PDF | application/pdf | 9,821 | Zachariah W.,1 Complainant, v. Deni s R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. | July 6, 2023 | Appeal Number: 2023004388
Background:
Prior to his retirement in late 2013, Complainant had worked as Physician/Surgeon, Grade GS -
15, in the surgery departments for the Agency’s medical center in Charleston, South Carolina and then in Asheville, North Carolina. On April 24, 2023, Complainant contacted an Agency EEO Counselor, alleging that management at the Agency’s Asheville medical center had for ced him into retirement.
Complainant and the Agency did not resolve the matter through informal EEO counseling.
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 2023004388
On May 25, 2023, Complainant filed the instant formal EEO complaint alleging that the Agency
subjected him to discrimination in reprisal fo r prior EEO -protected activity (prior complaint -
Agency No. 200K -0584- 200111523) when:
1. On December 15, 2009, the Complainant received a reduction in grade and pay by an HR representative;
2. In 2013, the Complainant’s performance pay was denied;
3. In 2013, the Agency fail ed to pay Complainant's final militate service
deposit for his tour in Honduras;
4. In 2013, the Complainant lost his ac ademic appointment along with work
training residents;
5. On November 16, 2013, Complainant did not receive his final proficiency
report; and
6. On November 16, 2013, management forced Complainant to retire to avoid credentialing.
On July 6, 2023, the Agency dismissed Complainant’s formal EEO complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency de termined that
Complainant’s EEO Counselor contact was more than nine years beyond the 45- day regulatory
limit for timely EEO Counselor contact.
The instant appeal followed. On appeal, Complainant provides emails that were dated prior to
his retirement. Complainant also submits documents related to subsequent filings before the
Merit Systems Protection Board and U.S. D istrict Court. Additionally, Complainant submits
statements including one wherein he arg ued that he had not contacted an EEO counselor timely
because he feared that Agency management would retaliate against him.
Legal Analysis:
the Commission’s website.
2 2023004388
On May 25, 2023, Complainant filed the instant formal EEO complaint alleging that the Agency
subjected him to discrimination in reprisal fo r prior EEO -protected activity (prior complaint -
Agency No. 200K -0584- 200111523) when:
1. On December 15, 2009, the Complainant received a reduction in grade and pay by an HR representative;
2. In 2013, the Complainant’s performance pay was denied;
3. In 2013, the Agency fail ed to pay Complainant's final militate service
deposit for his tour in Honduras;
4. In 2013, the Complainant lost his ac ademic appointment along with work
training residents;
5. On November 16, 2013, Complainant did not receive his final proficiency
report; and
6. On November 16, 2013, management forced Complainant to retire to avoid credentialing.
On July 6, 2023, the Agency dismissed Complainant’s formal EEO complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency de termined that
Complainant’s EEO Counselor contact was more than nine years beyond the 45- day regulatory
limit for timely EEO Counselor contact.
The instant appeal followed. On appeal, Complainant provides emails that were dated prior to
his retirement. Complainant also submits documents related to subsequent filings before the
Merit Systems Protection Board and U.S. D istrict Court. Additionally, Complainant submits
statements including one wherein he arg ued that he had not contacted an EEO counselor timely
because he feared that Agency management would retaliate against him.
ANALYSIS AND FINDINGS
In pertinent pa rt, EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall
dismiss a com plaint for failure to comply with the applicable time limits. EEOC Regulation 29
C.F.R. § 1614.105(a)(1) provides, that complaints of discrimination must be brought t o the
attention of an EEO Counselor within 45 days of the date of the matter alleged to b e
discriminatory or within forty -five days of the effective date of the personnel action. Time limits
are subject to waiver, estoppel, or equitable tolling. 29 C.F.R. § 1614.604(c). EEOC has adopted
a “reasonable suspicion” standard (as opposed to a “supportive fact” standard) to determine when the 45- day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No.
059700852 (Feb.11, 1999).
3 2023004388
Thus, the ti me 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, the record discloses that the alleged discriminatory events occurred on or before November
16, 2013, but Complainant did not initiate contact with an EEO Counselor until April 24, 2023,
which is years beyond the applicable 45- day limitation period.
EEOC regulations provide that the Agency or the Commission shall extend t he tim e limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence, he was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limits, or for other
reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). On
appeal, we are not persuaded t o excuse the untimely contact. The Commission has repeatedly
held that fear of reprisal is an insufficient justification for extending the time limitation for
contacting an EEO Counselor. Duncan v. Dep’t of Veterans Affairs, EEOC Request No.
05970315 (July 10, 1998). | Zachariah W.,1
Complainant,
v.
Deni s R. McDonough,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2023004388
Agency No. 2004-637-2023-151783
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated July 6, 2023, dismissing his formal EEO
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
Prior to his retirement in late 2013, Complainant had worked as Physician/Surgeon, Grade GS -
15, in the surgery departments for the Agency’s medical center in Charleston, South Carolina and then in Asheville, North Carolina. On April 24, 2023, Complainant contacted an Agency EEO Counselor, alleging that management at the Agency’s Asheville medical center had for ced him into retirement.
Complainant and the Agency did not resolve the matter through informal EEO counseling.
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 2023004388
On May 25, 2023, Complainant filed the instant formal EEO complaint alleging that the Agency
subjected him to discrimination in reprisal fo r prior EEO -protected activity (prior complaint -
Agency No. 200K -0584- 200111523) when:
1. On December 15, 2009, the Complainant received a reduction in grade and pay by an HR representative;
2. In 2013, the Complainant’s performance pay was denied;
3. In 2013, the Agency fail ed to pay Complainant's final militate service
deposit for his tour in Honduras;
4. In 2013, the Complainant lost his ac ademic appointment along with work
training residents;
5. On November 16, 2013, Complainant did not receive his final proficiency
report; and
6. On November 16, 2013, management forced Complainant to retire to avoid credentialing.
On July 6, 2023, the Agency dismissed Complainant’s formal EEO complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency de termined that
Complainant’s EEO Counselor contact was more than nine years beyond the 45- day regulatory
limit for timely EEO Counselor contact.
The instant appeal followed. On appeal, Complainant provides emails that were dated prior to
his retirement. Complainant also submits documents related to subsequent filings before the
Merit Systems Protection Board and U.S. D istrict Court. Additionally, Complainant submits
statements including one wherein he arg ued that he had not contacted an EEO counselor timely
because he feared that Agency management would retaliate against him.
ANALYSIS AND FINDINGS
In pertinent pa rt, EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall
dismiss a com plaint for failure to comply with the applicable time limits. EEOC Regulation 29
C.F.R. § 1614.105(a)(1) provides, that complaints of discrimination must be brought t o the
attention of an EEO Counselor within 45 days of the date of the matter alleged to b e
discriminatory or within forty -five days of the effective date of the personnel action. Time limits
are subject to waiver, estoppel, or equitable tolling. 29 C.F.R. § 1614.604(c). EEOC has adopted
a “reasonable suspicion” standard (as opposed to a “supportive fact” standard) to determine when the 45- day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No.
059700852 (Feb.11, 1999).
3 2023004388
Thus, the ti me 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, the record discloses that the alleged discriminatory events occurred on or before November
16, 2013, but Complainant did not initiate contact with an EEO Counselor until April 24, 2023,
which is years beyond the applicable 45- day limitation period.
EEOC regulations provide that the Agency or the Commission shall extend t he tim e limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence, he was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limits, or for other
reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). On
appeal, we are not persuaded t o excuse the untimely contact. The Commission has repeatedly
held that fear of reprisal is an insufficient justification for extending the time limitation for
contacting an EEO Counselor. Duncan v. Dep’t of Veterans Affairs, EEOC Request No.
05970315 (July 10, 1998).
CONCLUSION
The Agency’s final decision dismissing Complainant’s formal EEO complaint for untimely EEO Counselor contact was proper 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; o r
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).
4 2023004388
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, Washingt on, 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 submitte d 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 res ult in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented th e timely filing of the
request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commis sion 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 th at 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 securi ty 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 f or you. You must submit the requests for waiver of
cour t 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.
5 2023004388
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 24, 2023
Date | [
"Howard v. Dep’t of the Navy, EEOC Request No. 059700852 (Feb.11, 1999)",
"EEO Counselor. Duncan v. Dep’t of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.604(c)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
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487 | https://www.eeoc.gov/sites/default/files/decisions/2024_05_22/2024000920.pdf | 2024000920.pdf | PDF | application/pdf | 10,388 | Monroe A,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. | October 5, 2023 | Appeal Number: 2024000920
Background:
During the period at issue , Complainant worked as a Director of Occupational Health at the
Agency’s Northampton VA Medical Center in Leeds, Massachusetts.
On April 6, 2023, Complainant initiated EEO Counselor contact. Informal efforts at resolution
were not successful.
On May 20, 2023, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on national origin, rel igion, age, and in reprisal for prior
protected EEO activity when, effective August 4, 2022, Complainant was removed from federal
service due to absence without official leave (AWOL).
In its October 5, 2023 final decision, the Agency dismissed the formal complaint on two
grounds. First, 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 initial EEO
Counselor contact was on April 6, 2023, which it found to be beyond the 45- day limitation
period.
Second, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(8),
finding that Complainant was alleging dissatisfac tion in the informal stage processing of the
instant complaint.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant requested an extension for file a brief which th e Commission granted.
However, Complainant never submitted any s tatement in support of her appeal.
The Agency submitted a brief arguing that the Commission should affirm its decision to dismiss
the formal complaint.
STANDARD OF REVIEW
The Agency’s decision to dis miss a complaint is subject to de novo review by the Commission,
which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and
take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC
Request No. 05970077 (March 13, 1997) . Thus, all reasonable inferences that may be drawn
from the complaint’s allegations must be made in favor of the complainant.
Legal Analysis:
the Commission should affirm its decision to dismiss
the formal complaint.
STANDARD OF REVIEW
The Agency’s decision to dis miss a complaint is subject to de novo review by the Commission,
which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and
take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC
Request No. 05970077 (March 13, 1997) . Thus, all reasonable inferences that may be drawn
from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attenti on 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 actio n,
within forty -five (45) days of the effective date of the action.
Here, the sole person nel action at issue is Complainant’s removal from Agency employment ,
effective on August 4, 2022. Therefore, Complainant had 45 days from August 4, 2022, or until September 19, 2022,
2 to timely initiate EEO Counselor contact. However, Complainant did not
to do so and did not initiate EEO Counselor contact until April 6, 2023, well beyond the 45- day
limitation perio d.
The EEO Counselor’s report reflects that Complainant indicated that he had timely contacted the EEO Counselor within 45 days , but was verba lly informed by the EEO office to contact the
Merit Systems Protection Board and the Office of Special Counsel regarding his removal.
Complainant further indicated that he contacted the Office of Special Counsel, on August 5, 2022, one day after his removal became effective. Complainant has not provided any documentation supporting that he contacted the Office of Special Counsel on August 5, 2022. Th ere is also no evidence supporting Complainant ’s
assertions that he attempted to in itiate EEO contact in 2022. Rather, the EEO Counselor’s report
reflects that Complainant did not initiate EEO Counselor contact until April 6, 2023, well beyond
the limitation period . In sum, Complainant has not provided adequate justification for an
extension of the 45- day l imitation period.
Because we affirm the Agency’s dismissal for untimely EEO Counselor contact, we need not address the Agency’s alternative grounds for dismissal. | Monroe A,1
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2024000920
Agency No. 200H-10N1-2023-151475
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated October 5, 2023, dismissing a formal
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. We AFFIRM t he
Agency’s dismissal of Complainant’s complaint.
ISSUES PRESENTED
Whether the Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2), and for alleging dissatisfaction with the informa l stage processing of the instant complaint, pursuant to 29 C.F.R. § 1614.107(a)(8).
BACKGROUND
During the period at issue , Complainant worked as a Director of Occupational Health at the
Agency’s Northampton VA Medical Center in Leeds, Massachusetts.
On April 6, 2023, Complainant initiated EEO Counselor contact. Informal efforts at resolution
were not successful.
On May 20, 2023, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on national origin, rel igion, age, and in reprisal for prior
protected EEO activity when, effective August 4, 2022, Complainant was removed from federal
service due to absence without official leave (AWOL).
In its October 5, 2023 final decision, the Agency dismissed the formal complaint on two
grounds. First, 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 initial EEO
Counselor contact was on April 6, 2023, which it found to be beyond the 45- day limitation
period.
Second, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(8),
finding that Complainant was alleging dissatisfac tion in the informal stage processing of the
instant complaint.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant requested an extension for file a brief which th e Commission granted.
However, Complainant never submitted any s tatement in support of her appeal.
The Agency submitted a brief arguing that the Commission should affirm its decision to dismiss
the formal complaint.
STANDARD OF REVIEW
The Agency’s decision to dis miss a complaint is subject to de novo review by the Commission,
which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The
Commission should construe the complaint in the light most favorable to the complainant and
take the complaint’s allegations as true. See Cobb v. Department of the Treasury , EEOC
Request No. 05970077 (March 13, 1997) . Thus, all reasonable inferences that may be drawn
from the complaint’s allegations must be made in favor of the complainant.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attenti on 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 actio n,
within forty -five (45) days of the effective date of the action.
Here, the sole person nel action at issue is Complainant’s removal from Agency employment ,
effective on August 4, 2022. Therefore, Complainant had 45 days from August 4, 2022, or until September 19, 2022,
2 to timely initiate EEO Counselor contact. However, Complainant did not
to do so and did not initiate EEO Counselor contact until April 6, 2023, well beyond the 45- day
limitation perio d.
The EEO Counselor’s report reflects that Complainant indicated that he had timely contacted the EEO Counselor within 45 days , but was verba lly informed by the EEO office to contact the
Merit Systems Protection Board and the Office of Special Counsel regarding his removal.
Complainant further indicated that he contacted the Office of Special Counsel, on August 5, 2022, one day after his removal became effective. Complainant has not provided any documentation supporting that he contacted the Office of Special Counsel on August 5, 2022. Th ere is also no evidence supporting Complainant ’s
assertions that he attempted to in itiate EEO contact in 2022. Rather, the EEO Counselor’s report
reflects that Complainant did not initiate EEO Counselor contact until April 6, 2023, well beyond
the limitation period . In sum, Complainant has not provided adequate justification for an
extension of the 45- day l imitation period.
Because we affirm the Agency’s dismissal for untimely EEO Counselor contact, we need not address the Agency’s alternative grounds for dismissal.
CONCLUSION
The Agency’ s final decision to dismiss the formal complaint on the grounds of untimely EEO
Counselor contact is AFFIRMED.
2 Because 45 days from August 4, 2022, fell on Sunday, September 18, 2022, the 45- day
limitation period was extended to the next business day, Monday, September 19, 2022.
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 argum ents 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 ag ency.
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 re quest, 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 their request for reconsideration, and any statement or brief in
support of t heir 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 Direc tor, 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,
Washingt on, 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 dig ital 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 t he 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the d ate that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by their full name and official title. Failure to do so
may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your c omplaint.
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, i f 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 appoi ntment 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 11, 2024
Date | [
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Washington, DC 20507. In the absence of a legible post mark, a complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five da ys of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted i n 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
reconsiderat ion. The Commission will consider requests for reconsideration filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by their full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency ” or “department” means the national
organization, and not the 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 y our 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. Similar ly, 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 Commiss ion. 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 5, 2024
Date | [
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489 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/2019000427.pdf | 2019000427.pdf | PDF | application/pdf | 10,630 | Terrell C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. | August 6, 2018 | Appeal Number: 2019000427
Background:
During the period at issue, Complainant worked for the Agency as a Mail Handler Assistant in
Palatine , Illinois.
On April 16, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race and sex when:
1. on November 28, 2016, he was injured at work and management did not file an accident report or offer him Continuation of Pay (COP);
2. on April 20, 2017, he tried to cancel his resignat ion paperwork, but management would
not allow him to; and
3. on or around March 26, 2018, he received a bill from a credit agency regarding his
hospital visit in 2016 for his work injury.
In its August 6, 2018 final decision, t he Agency dismissed claims 1 – 2 for untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on April 16, 2018, which the Agency found was more than forty -five days after the alleged d iscriminatory events occurred.
The Agency further dismissed claim 3 for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1). Specifically, the Agency found that the subject claim is a collateral attack on the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) process. The Agency stated that Complainant should have raised his allegations through the OWCP process,
and not through the EEO complaint process.
The instant appeal followed. Complainant, on appeal, argue s that he was not aware of the 45 -
day limitation period to initiate EEO Counselor contact. Specifically, Complainant stated that he contacted the EEO hotline when he received his medical bill and that he “was a newly hired employed with less than one year of service.”
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 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 o f 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 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 reasons
considered sufficient by the Agency or the Commission.
The alleged discriminatory event s occurred on November 28, 2016 and April 20, 2017, but
Complainant did not initiate contact with an EEO Counselor until April 16, 2018, well beyond
the 45- day limitation period. In his complaint, Complainant claimed that Agency management
“failed to put my accident in the EHS system, and submit my medical paperwork to the
Department of Labor. I sustained an injury on November 28, 2016 while working on the dock and unloading trucks.” Complainant also claimed that management would not cancel his resignation paperwork “due to my attendance although I mentioned in my pre-D for attendance it
was due to my injury and daughter.”
Here, we find Complainant had or should have had a reasonable suspicion of discrimination
regarding h is claim s more than 45 days prior to h is initial contact with an EEO Counselor. The
record contains a copy of the Manager, Distribution Operations’ affidavit dated May 5, 2018, stating that she has been employed in the Agency’s Palatine EEO office since April 2007, and
that an EEO poster “has been and is currently displayed on the employee bulletin boards since I
have been in this office. This poster advises employees of the time requirements for timely filing an EEO counseling request and the telephone number to contact to request EEO counseling.”
Complainant 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). Therefore, the
Agency properly dismissed claims 1 – 2 for untimely EEO Counselor contact.
Claim 3
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. U.S. Postal Service , EEOC Request No. 05940585 (September 22, 1994); Lingad v.
U.S. Postal Service , EEOC Request No. 05930106 (June 24, 1993). The proper forum for
Complainant to have raised h is challenges to actions which occurred during the OWCP 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 OWCP process. The Agency properly
dismissed claim 3 for failure to state a claim.
The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated herein is AFFIRMED. | Terrell C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2019000427
Agency No. IJ-531-0045-18
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 6, 2018, dismissing a formal
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Mail Handler Assistant in
Palatine , Illinois.
On April 16, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race and sex when:
1. on November 28, 2016, he was injured at work and management did not file an accident report or offer him Continuation of Pay (COP);
2. on April 20, 2017, he tried to cancel his resignat ion paperwork, but management would
not allow him to; and
3. on or around March 26, 2018, he received a bill from a credit agency regarding his
hospital visit in 2016 for his work injury.
In its August 6, 2018 final decision, t he Agency dismissed claims 1 – 2 for untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on April 16, 2018, which the Agency found was more than forty -five days after the alleged d iscriminatory events occurred.
The Agency further dismissed claim 3 for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1). Specifically, the Agency found that the subject claim is a collateral attack on the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) process. The Agency stated that Complainant should have raised his allegations through the OWCP process,
and not through the EEO complaint process.
The instant appeal followed. Complainant, on appeal, argue s that he was not aware of the 45 -
day limitation period to initiate EEO Counselor contact. Specifically, Complainant stated that he contacted the EEO hotline when he received his medical bill and that he “was a newly hired employed with less than one year of service.”
ANALYSIS AND FINDINGS
Claims 1 – 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 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 o f 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 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 reasons
considered sufficient by the Agency or the Commission.
The alleged discriminatory event s occurred on November 28, 2016 and April 20, 2017, but
Complainant did not initiate contact with an EEO Counselor until April 16, 2018, well beyond
the 45- day limitation period. In his complaint, Complainant claimed that Agency management
“failed to put my accident in the EHS system, and submit my medical paperwork to the
Department of Labor. I sustained an injury on November 28, 2016 while working on the dock and unloading trucks.” Complainant also claimed that management would not cancel his resignation paperwork “due to my attendance although I mentioned in my pre-D for attendance it
was due to my injury and daughter.”
Here, we find Complainant had or should have had a reasonable suspicion of discrimination
regarding h is claim s more than 45 days prior to h is initial contact with an EEO Counselor. The
record contains a copy of the Manager, Distribution Operations’ affidavit dated May 5, 2018, stating that she has been employed in the Agency’s Palatine EEO office since April 2007, and
that an EEO poster “has been and is currently displayed on the employee bulletin boards since I
have been in this office. This poster advises employees of the time requirements for timely filing an EEO counseling request and the telephone number to contact to request EEO counseling.”
Complainant 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). Therefore, the
Agency properly dismissed claims 1 – 2 for untimely EEO Counselor contact.
Claim 3
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. U.S. Postal Service , EEOC Request No. 05940585 (September 22, 1994); Lingad v.
U.S. Postal Service , EEOC Request No. 05930106 (June 24, 1993). The proper forum for
Complainant to have raised h is challenges to actions which occurred during the OWCP 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 OWCP process. The Agency properly
dismissed claim 3 for failure to state a claim.
The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion , reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Emp loyment 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.
Complai nant’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 “de partment” 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 comp laint .
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 y ou 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 T HE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2018
Date | [
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-0.0697101354598999,
0.11089255660772324,
0.05903266370296478,
0.022190842777490616,
-0.001258557429537177,
-0.024719662964344025,
0.04659286141395569,
-0.041698094457387924,
-0.023403828963637352,
0.02425549365580082,
0.032814428210258484,
-0.02624490112066269,
-0.049931906163692474,
0.00... |
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