01992850
12-13-2000
Carl Mayabb, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Carl Mayabb v. Air Force
01992850
December 13, 2000
.
Carl Mayabb,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01992850
Agency No. 9VIM99085
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated
February 10, 1999, 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., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.<2> In his complaint, complainant alleged that
he was subjected to discrimination on the bases of his sex (male), age
(over 40), disability (shoulder), and reprisal (previous EEO activity),<3>
alleging that the agency was accommodating female employees with more
restrictions than complainant, was accommodating younger employees with
medical restrictions, and harassing him about medical documentation.
BACKGROUND
The agency in its FAD identified the issues in the complaint as alleging
that complainant was discriminated against when he was issued a letter
concerning Medical Information dated August 24, 1998, and a letter
concerning a Notice of Proposed Separation dated December 17, 1998.
The agency dismissed the allegation, concerning the Medical Information
letter, pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2), for
failure to initiate contact with an EEO Counselor within the applicable
45-day time period established by 29 C.F.R. � 1614.105(a)(1). The agency
noted that complainant contacted an EEO Counselor on December 7, 1998. The
agency dismissed
the allegation, concerning the Notice of Proposed Separation, because it
was a proposed action and had not been effectuated into a final action.
On appeal, complainant reiterates that the agency acted improperly in
dismissing the complaint. He points out that the complaint does not have
any statements about the August 24, 1998, letter. He acknowledges that
a letter was drafted on August 24, 1998, by his supervisor and mailed to
complainant's doctor, but that complainant was not aware of the letter
until December 4, 1998. Accordingly, complainant takes the position
that the complaint should not have been dismissed due to untimeliness.
Finally, complainant submits that nowhere in his complaint did he
allege that he was aggrieved by the issuance of the Notice of Proposed
Separation, emphasizing that the Notice was only included as supporting
evidence. The agency did not reply.
ANALYSIS AND FINDINGS
Complainant's Allegations
The record substantiates that the matters referenced in complainant's
formal complaint were not addressed in the FAD. In Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that �the agency has the burden of providing evidence and/or
proof to support its final decisions.� See also Gens v. Department of
Defense, EEOC Request No. 05910837 (January 31, 1992). The FAD gives
no explanation why its framing of the issues differs from the issues
raised in the formal complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See Scher
v. United
States Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun
v. United States Postal Service, EEOC Request No. 05891068 (March 8,
1990).
The FAD framed the issues congruent with the framing of the issues by
the EEO Counselor's Report. Although it is unclear whether complainant
specifically discussed the matters delineated in his complaint with the
EEO counselor, the EEO Counselor's Report recognized that complainant's
discrimination allegations were based on sex, age, disability, and
reprisal. The August 24, 1998, letter from complainant's supervisor to
complainant's doctor welcomes the transmittal of medical information to
the supervisor regarding complainant's physical restrictions/limitations
and also assertedly encloses a copy of complainant's position description
and a list of the physical requirements. Certainly, the focus of the
letter is accommodation of complainant's work restrictions. Accordingly,
the complainant's allegations that the agency was failing to accommodate
him on the basis of sex and age, in terms of disparate treatment, as
well as reprisal are like and related. The letter could also arguably be
construed as an effort to harass complainant about medical documentation.
To narrow the focus as the FAD would dictate gives no recognition to
the sex, age, and retaliation issues raised by complainant. This would
be an unreasonable and strained construction. We further suggest, that
an inference could be drawn that the matters delineated in his complaint
were brought to the attention of the EEO counselor.
Accordingly, we find that the agency erred in failing to address
complainant's allegations that he was subjected to discrimination on the
bases of his sex (male), age (over 40), disability (physical-shoulder),
and reprisal (previous EEO activity), alleging that the agency was
accommodating female employees with more restrictions than complainant,
was accommodating younger employees with medical restrictions, and
harassing him about medical documentation. <4>
Timeliness of Complainant's Allegations
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination 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.
The FAD would essentially bar complainant's complaint based on the August
24, 1998, letter from his supervisor to his doctor. Most significantly,
the agency has provided no explanation how or why the letter should act as
a time bar to complainant's allegations in his complaint. Complainant has
indicated he was not aware of the letter until December 4, 1998. There is
no indication prior to December 4, 1998, when complainant may have had
a reasonable suspicion of discrimination related to the letter. It is
well-settled that, where there is an issue of timeliness, "[a]n agency
always bears the burden of obtaining sufficient information to support
a reasoned determination as to timeliness." Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). The agency
presumed that complainant knew, should have known, or had a reasonable
suspicion of discrimination involving the letter. Nevertheless, we
conclude that such an inference has not been justified by the agency
with sufficient information to support a reasoned determination.
CONCLUSION
The Commission therefore concludes that the agency failed to address
complainant's claims in his complaint, and the Commission deems the
agency's action to be tantamount to a dismissal of the matters raised
in the complaint. Accordingly, the agency's dismissal of complainant's
claims are REVERSED, and the claims are also REMANDED to the agency for
further processing consistent with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees
in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 13, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3The record indicates that complainant participated in prior protected
activity, but it is unclear under which statute such activity was raised.
4Complainant, on appeal, acknowledges, however, that the Notice of
Separation was discussed in his complaint only as supportive evidence
and was not a separate claim. Accordingly, complainant does not dispute
the FAD's handling of the Notice of Separation matter.