01986244
02-09-2000
Blaine L. Dickinson, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Blaine L. Dickinson v. Department of Transportation
01986244
February 9, 2000
Blaine L. Dickinson, )
Complainant, )
)
v. ) Appeal No. 01986244
) Agency No. 5-98-5100
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On August 13, 1998, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. <1> In his complaint, complainant alleged that
he was subjected to discrimination on the bases of race (Caucasian),
age (48), and in reprisal for previous EEO activity when:
He was informed that his promotion to FG-11 would not be retroactive;
A co-worker was chosen instead of him to attend a school which can
lead to a major certification; and
On January 31, 1998, a vacancy for a position for which complainant
was selected for consideration was canceled.
Pursuant to EEOC Regulations, the agency dismissed issues (1) and (2)
for failure to timely contact an EEO Counselor, and dismissed issue (3)
for failure to state a claim. Specifically, for issues (1) and (2), the
agency determined that because, according to his own "chronology report,"
complainant became aware of the alleged discriminatory actions on August
29, 1997 and September 8, 1997, respectively, his October 24, 1997 initial
contact with the FAA Civil Rights Office was beyond forty-five days from
when the alleged discrimination occurred, and therefore untimely. With
regard to issue (3), the agency determined that the alleged agency
action did not rise to the level of a direct and personal deprivation
and did not represent a harm or loss with respect to a term, condition,
or privilege of employment.
The EEO Counselor's Report states that "ASW-9<2> was contacted October 23,
1997 for a[n] [EEO] counselor," by complainant, but that the "[a]ssigned
counselor had no contact with aggrieved." The chronology of events
submitted by complainant and referenced in the FAD indicates that on
August 29, 1997, complainant was told that when he received his future
promotion to FG-11 he would receive no back pay. In addition, the
chronology indicates that on September 23, 1997, complainant received
his SF-50 and learned the August 31, 1997 effective date of his FG-11
promotion, and that on September 29, 1997, he was informed of the reason
it was not back-dated.
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 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 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 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.
With respect to issues (1) and (2), we find that the agency's decision
to dismiss complainant's claims for untimely EEO Counselor contact was
improper. As noted above, complaints of discrimination should be brought
to the attention of the Equal Employment Opportunity Counselor within
forty-five 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
effective date of the action. In issue (1), complainant alleged that he
was subjected to discrimination when he was informed that his promotion
to FG-11 would not be retroactive. Although he was told on August 29,
1997, that his pending promotion would not include back pay, it is clear
from the record that the agency personnel action, the triggering event,
was not effective until August 31, 1997. However, because the record also
shows that complainant was not provided his SF-50 or otherwise informed
of the agency action denying him retroactive application of his promotion
until September 23, 1997, and that he was not given an explanation of
that action until September 29, 1997, the forty-five day time limitation
was not triggered until one of those dates. As complainant's request
for an EEO Counselor on October 23, 1997 was within forty-five days of
both the September 23, 1997 and September 29, 1997 dates, we find that
his contact was timely.
Regarding issue (2), the agency's FAD dismissed complainant's claim
because the October 24, 1997 date he contacted the FAA Civil Rights
Office was more than forty-five days beyond the September 8, 1997 date he
became aware of the alleged discrimination. The record shows, however,
that complainant contacted the agency's Civil Rights Office requesting an
EEO Counselor on October 23, 1997, or exactly forty-five days after the
September 8, 1997 date he became aware of the alleged discrimination.
The Commission has consistently held that a complainant satisfies
the criterion 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 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). Therefore, by virtue of
complainant's contact requesting a counselor with the agency's Civil
Rights Office on October 23, 1998, his EEO Counselor contact for issue
(2) was timely.
As concerns issue (3), 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 22, 1994).
We find that the agency's dismissal of issue (3) was also improper.
Here, complainant alleged that the agency discriminatorily canceled a
position for which he was selected for consideration, thereby denying
him the opportunity to be selected for the position. The Commission
has previously found that an allegation that an agency failed to fill
a vacancy for discriminatory reasons states a claim. See, e.g., Ladner
v. Department of the Treasury, EEOC Appeal No.01975681 (Apr. 17, 1998);
Bradford v. Department of Defense, EEOC Request No. 05920510 (Aug. 6,
1992). Complainant's allegation that the position in question was
canceled in reprisal for his EEO activity therefore states a claim.
Accordingly, the agency's decision to dismiss issues (1) through (3) is
REVERSED for the reasons set forth herein, and the complaint is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
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 (R1199)
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:
February 9, 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 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.
2ASW-9 is the designation given for the agency's Civil Right Office
throughout the record.