01980283
02-15-2000
Alan Silverstein, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Alan Silverstein v. Department of Education
01980283
February 15, 2000
Alan Silverstein, )
Complainant, )
)
v. ) Appeal No. 01980283
) Agency No. ED-97-20000
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's September 29, 1997 final
decision dismissing Complainant's complaint on the grounds of untimely
EEO counselor contact and failure to state a claim, is proper in part
pursuant to the provisions of 29 C.F.R. �1614.107(a)(1) and (2).<1>
The record shows that Complainant alleged that he had been discriminated
against on the bases of race (Jewish) and national origin (Jewish) when:
(1) from March 1995, through the summer of 1996, Complainant's supervisor
made anti-Semitic remarks about Complainant's ethnicity and national
origin on the job; (2) on October 13, 1996, Complainant's supervisor
denied him a promotion to the GS-13 level; (3) on October 13, 1996,
Complainant's supervisor denied him a transfer to another Principal
Office. The record shows that in response to the agency's written
requests for clarification, Complainant sent an electronic mail message
dated June 24, 1997, in which he stated that: (a) the first anti-Semitic
remark was made on April 18, 1995; (b) he (Complainant) kept a "chronology
time line" of the specific incidents; (c) October 13, 1996, was the date
when he was told he would never be promoted to the GS-13 level; and,
(d) his supervisor's abuse started on March 9, 1995, and continued until
his interview with the EEO counselor on November 4, 1996.
The agency dismissed claim (1) on the basis of untimely EEO counselor
contact. Claims (2) and (3) were dismissed on the grounds of failure to
state a claim. The agency found that because the supervisor in question
did not have the authority to promote or transfer Complainant, he had
failed to state a claim.
On appeal, the agency contends that Complainant has offered no evidence
to support his claim of a continuing violation. On appeal, Complainant
states that he has been a federal employee for 15 years, that for over
12 of those 15 years he has sometimes served as an EEO investigator and
that he has "never come across a more abusive and demeaning supervisor".
Concerning claim (1) the record shows that Complainant alleged that he
had been subjected to anti-Semitic remarks from March 1995 through his
contact with the EEO Counselor on November 4, 1996. Complainant further
stated that he had kept a chronology of all the alleged discriminatory
remarks made by the supervisor. <2> The agency found that Complainant's
initial EEO counselor contact on November 4, 1996 had been untimely.
On appeal, Complainant claimed that the discriminatory remarks were made
as late as November 4, 1996.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period for
contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Complainant was
allegedly the subject of continuous discriminatory remarks from March
1995 through November 1996. The record shows that he kept a chronology
of these incidents which suggests that he suspected discrimination
at the time these remarks were made. However, Complainant contends,
and the agency has failed to contradict, that as late as November 4,
1996, these incidents were taking place. Because Complainant suspected
discrimination at the time these remarks were made, the decision to
dismiss the portion of claim (1) concerning remarks made on dates
which are more than 45 calendar days before Complainant's initial
EEO counselor contact on November 4, 1996 was proper. The portion of
claim (1) concerning remarks made during the 45 calendar days preceding
Complainant's initial EEO counselor contact on November 4, 1996 was timely
raised with the EEO counselor and was therefore, improperly dismissed.
Regarding claims (2) and (3) the record shows that Complainant claims
that on October 13, 1996 he was told by his supervisor that he would
not be transferred from the office nor promoted to the GS-13 level.
The agency dismissed these claims on the grounds of failure to state
a claim after finding that the supervisor in question did not have the
authority to promote or transfer Complainant. We disagree. The agency
should have accepted claims (2) and (3) for investigation, and not
dismissed them for failure to state a claim. The only question for the
agency to consider is whether the dismissed claims allege employment
discrimination on a basis covered by EEO statutes. If the answer is yes,
then the agency must accept the complaint for processing, regardless of
what it thought of the merits. Odoski v. U.S. Department of Energy, EEOC
Appeal No. 01901496 (April 16, 1990). The Commission hereby AFFIRMS the
dismissal of the portion of claim (1) concerning events occurring more
than 45 days prior to November 4, 1996. The dismissal of the portion of
claim(1) that concerns alleged remarks made during the 45 calendar days
preceding Complainant's initial EEO counselor contact on November 4,
1996 is REVERSED and REMANDED for further processing consistent with
this decision and applicable regulations. The dismissal of claims (2)
and (3) for failure to state a claim is also REVERSED. Claims (2) and
(3) are REMANDED for further processing consistent with this decision
and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
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:
February 15, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ _________________________________
DATE
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 last incident recorded in this chronology is dated October 24, 1995.