01985952
09-17-1999
Andrew C. Henderson, Appellant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Andrew C. Henderson v. Department of Defense
01985952
September 17, 1999
Andrew C. Henderson, )
Appellant, )
) Appeal No. 01985952
v. )
) Agency No. PA-98-002
William S. Cohen, )
Secretary, )
Department of Defense, )
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., 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. The appeal is accepted
in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for untimely contact with an EEO Counselor
and failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on May 22, 1998, alleging
discrimination on the bases of race (Black), sex (male), age (d.o.b.,
July 10, 1941), disability (blindness in left eye), and reprisal (prior
EEO activity) when,
(1) on January 1, 1998, his overseas tour was not extended;
(2) he was relieved of his duties from approximately March 1997 to the
end of his appointment date on January 1, 1998;
(3) he was not given the opportunity to compete for the position of GS-12,
Logistics Management, which was announced shortly after January 1, 1998;
(4) in July of 1996, his position as Supply Management Specialist,
GS-2003-11, was abolished after management reorganized the Defense Fuel
Region - Europe (DFR-E) causing an imbalance of Blacks in management
positions; and
(5) management continued to bring new personnel consisting of friends
and associates into DFR-E.
In its final decision, the agency dismissed the last three allegations,
each on different grounds. Allegation (3) was dismissed for failure
to raise the matter before an EEO counselor.<1> Allegation (4) was
dismissed when the agency concluded that appellant failed to comply with
the time limits contained within 29 C.F.R. �1614.105(a)(1). Finally,
the fifth allegation was dismissed for failure to state a claim when the
agency found that appellant did not show how this allegation specifically
affected the terms and conditions of his employment. Allegations (1)
and (2) were accepted for investigation. This appeal followed.
ANALYSIS AND FINDINGS
Untimely Contact with an EEO Counselor - Allegation (4)
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. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
After a careful examination of the file, the evidence reveals that
appellant, regarding the matters contained within the aforementioned
complaint, initiated contact with an EEO counselor on December 12,
1997. The allegation at issue here, (4), occurred in July of 1996.
Information provided to the agency by appellant suggests that he,
appellant, reasonably suspected discrimination well before he made
initial contact with an EEO counselor. In a letter dated November 19,
1997, appellant stated that since the new commander took over in July,
1996, he (appellant) has noticed a gross imbalance and reduction of
Black managers. He also stated that he chose not to write the DFSC
commander concerning the matter because he did want his effort to net
a sensing session at this level. Instead, he felt that such a session
would be more effective if it came from the top. Although the letter is
dated November 19, 1997, which is within 45 days of December 12, 1997,
the date of counselor contact, the Commission finds that it (the letter)
strongly indicates that appellant suspected discrimination as early as
July of 1996. As such, we hold that the agency's dismissal of allegation
(4) on 29 C.F.R. �1614.107(b) grounds was appropriate.
Failure to State a Claim - Allegation (5)
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall 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 present case, the agency, in its final decision and statement on
appeal, characterizes allegation (5) as an effort on the part of appellant
to complain about the selection of others. However, as appellant points
out in his statement on appeal, that is not the case. Regarding this
allegation, appellant is contending that the plan management used
to reorganize was nothing more than a scheme designed to displace,
then replace, Black employees. According to him, it was this guise
that led to the abolishment of his job. After considering appellant's
argument, the Commission concludes that allegation (5) should have been
dismissed, but on alternative grounds. By contending that his job was
abolished due to a discriminatory reorganization plan, we find that he
did state a viable claim under Title VII. However, we also find that,
because this is essentially the same thing he alleged in allegation (4),
that it should have been dismissed under 29 C.F.R. �1614.107(a), which
provides, in pertinent part, that an agency shall dismiss a complaint,
or a portion thereof, that states the same claim that is pending before
or has been decided by the agency or Commission.
CONCLUSION
Based on the foregoing, we find that the agency's decision to dismiss
allegations (4) and (5) was proper and is, therefore, 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:
Sept. 17, 1999
____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Commission notes that, on appeal, appellant does not challenge
the agency's decision with respect to this allegation. As such, that
issue will not be addressed here.