0120091515
05-29-2009
Algernon W. Tinsley, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Algernon W. Tinsley,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091515
Agency No. PHI080632SSA
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 31, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
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 as an
Administrative Law Judge assigned to the Office of Disability Adjudication
and Review in the agency's Huntington, West Virginia office. Complainant
asserts that he is the only African American employee in the office of
35-40 employees. In a formal EEO complaint dated September 9, 2008,
complainant alleged that he was subjected to an ongoing discriminatory
hostile work environment on the bases of race (African-American) and age
(69 years). As recent examples of the harassment, complainant alleged that
management accused him of falsifying his time and attendance records when
working at an remote location; security devices were used to monitor his
time and attendance in violation of the negotiated agreement; management
allowed his decisions to be challenged by subordinate staff; and that
he was treated in a manner designed to embarrass and damage his personal
and professional reputation. In its final decision, the agency dismissed
the complaint, pursuant to 29 C.F.R. � 1614.105(a) for failure to raise
the claims initially with an EEO counselor. The instant appeal followed.
The record contains a June 23, 2008 memorandum from the agency's
Philadelphia EEO office (CREO) requesting contract EEO counseling,
and indicating that complainant had contacted the agency to request
EEO counseling on May 22, 2008, alleging that he was being subjected
to a "hostile work environment" on the bases of his race and age.
The memo also contains the following sentence, "PER THE CREO MANAGER,
THIS IS A VERY COMPLEX CASE." Other documents in the file indicate
that complainant signed an agreement to extend the counseling period
to September 2008, and also signed a notice on July 3, 2008, that he
had been given his rights under the EEO complaints process. Finally,
the record establishes that complainant was issued a notice of right to
file a formal EEO complaint, signed by the EEO counselor on August 20,
2008. Pursuant to this notice, complainant filed his formal complaint
on September 9, 2008, within the required 15-day filing period.
The agency dismissed the complaint asserting complainant failed to
raise the subject of his complaint during EEO counseling. In support of
this conclusion, the agency points to the EEO Counselor's report which
indicates that the counselor attempted to contact complainant several
times to discuss his allegations, but complainant did not respond.
Therefore, the counselor issued the notice of right to file, and
complainant filed his formal complaint. After careful examination
of the record, the Commission concludes the agency's dismissal should
be reversed. The record establishes that complainant did initiate the
EEO counseling process and communicated the essence of his claim in
his request-a claim of discriminatory hostile work environment based
on race and age. He also received information about his rights and
was provided with a notice of right to file a formal complaint by the
counselor. Complainant's formal complaint contained the very same claim
as the one he communicated to the agency when initiating counseling,
although he additionally provided examples of incidents supporting
his hostile work environment claim. In sum, although complainant did
not meet with the counselor in person, the agency was on notice of the
claim he later raised in his formal complaint. Therefore, the agency's
dismissal for failure to raise the claim during EEO counseling is not
supported by the record.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed and the complaint is remanded for further processing
in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim (hostile work
environment) in accordance with 29 C.F.R. � 1614.108 et seq.1 The agency
shall acknowledge to the complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision
becomes final. The agency shall issue to complainant a copy of the
investigative file and also shall notify complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior
to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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
May 29, 2009
__________________
Date
1 We note, however, that in EEOC Petition No. 0320090048 (April 29, 2009),
the Commission has already addressed complainant's suspension for 30
days for allegedly falsifying his time and attendance. The Commission
concurred with the decision of the Merit Systems Protection Board,
which upheld the suspension and finding no discrimination.
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0120091515
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091515