Bobby G. Davis, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01986551_r (E.E.O.C. Sep. 3, 1999)

01986551_r

09-03-1999

Bobby G. Davis, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Bobby G. Davis, )

Appellant, )

)

)

v. ) Appeal No. 01986551

) Agency No. FO980710230

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On August 25, 1998, appellant filed a timely appeal of a final agency

decision, which was dated August 17, 1998, dismissing his complaint,

pursuant to 29 C.F.R. �1614.107(b), due to untimely EEO Counselor contact.

In his formal complaint dated August 6, 1998, appellant alleged that

he was discriminated against based on physical disability (nervous

condition), age (68), and in reprisal for his whistle blower activity,

when from 1982 through 1994, he was subjected to harassment and a hostile

work environment and was denied promotions and reassignment/transfer; and

in October 1994, he was constructively discharged. Appellant indicated

that in 1993, he contacted an identified EEO Counselor and asked him to

fill out a complaint for him, but the Counselor called him back several

months later and told him that he �did not have a complaint and that [the

Counselor] would not file any papers� for him. Appellant also indicated

that in 1993 and June 1994, he wrote letters to another identified EEO

Counselor about his being mistreated by management, and that Counselor,

in response, told him that the matter was closed and not to write any

more letters to his Senator.

In his formal complaint, appellant also raised matters which occurred

after his 1994 retirement. Specifically, appellant alleged that in June

1997, while attending his granddaughter's performance in a local play, he

had a confrontation with the identified Counselor/coworker, which resulted

in him hitting that individual and he was, later, charged with assault;

and in July 1998, he received a slanderous memo from that individual.

In its final decision, the agency identified the allegations of

appellant's complaint as whether appellant was discriminated against when

he was not selected for four lock and dam operator positions during the

period 1982 through 1995 at Dardanelle Resident Office. The agency also

stated that appellant's allegations also involve the following issues:

promotion, reassignment, work conditions, harassment, age, and reprisal.

The agency determined that appellant's EEO Counselor contact with regard

to his complaint was untimely. The EEO Counselor's Report indicates

that appellant contacted the present EEO Counselor with regard to his

complaint on May 11, 1998.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action.

After a review of the record, we find that if appellant did, in fact,

contact EEO Counselors in 1993 and June 1994, portions of the allegations

in the complaint would be timely. However, there is no evidence in

the record to show whether appellant actually did contact those EEO

Counselors, and whether those individuals refused to provide him with EEO

counseling with regard to his complaint. Since the record is insufficient

with regard to these matters, we cannot determine the timeliness of his

complaint, and the case must be remanded for a supplemental investigation,

as set forth in the Order below.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

The Commission has held that an employee is aggrieved when one 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. Department of

the Air Force, EEOC Request No. 05931049 (April 21, 1997).

We note that the agency, in its decision, failed to address the

allegations regarding appellant's encounter with the identified EEO

Counselor in 1997, and the 1998 memo from that individual. Since we

consider the agency's omission of allegations as the dismissal of such,

we find that the subject allegations were properly dismissed since the

alleged incidents did not concern appellant's employment with the agency,

thereby failing to state a claim.

Accordingly, appellant's complaint, except the 1997 and 1998 incidents

alleged therein, is VACATED for a supplemental investigation, and the

case is REMANDED to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER

The agency, within thirty (30) calendar days of the date this decision

becomes final, is ORDERED to conduct a supplemental investigation

as follows:

The agency shall include affidavits from the two EEO Counselors, whom

appellant identified in his complaint, indicating the specific date of

his contact and the content of their discussion during those meetings.

Based on the foregoing, the agency shall determine whether appellant's

EEO contact with regard to any and/or all of his remanded allegations

in the complaint was timely and shall issue a final agency decision

in accordance with 29 C.F.R. �1614.107(b) and/or process the remanded

allegations in accordance with the applicable regulations.

A copy of the final agency decision or a copy of the notice of processing

for the complaint 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:

Sept. 3, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations