01994493
07-27-2000
Charles W. Walton, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Charles W. Walton v. Louis Caldera
01994493
.
Charles W. Walton,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01994493
Agency No. AOEWFO-98-0710210
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination brought under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
After receiving a notice of proposed suspension in January 1998, regarding
his conduct which was the subject of a successful EEO complaint against
him by a subordinate, complainant filed a grievance, followed-up by
another grievance filed on March 24, 1998, after he received a 10 day
suspension, hand-delivered on March 11, 1998. Complainant then "refiled"
his grievance on May 5, 1998, to sever the EEO matters contained therein,
and brought these severed matters to the attention of an EEO Counselor
on May 11, 1998.
During counseling, complainant alleged that he had been subjected to
discrimination and harassment for years due to his race and sexual
orientation. More specifically, he alleged that the 1997 EEO complaint
against him was based on erroneous information, which the agency did
not attempt to verify, and that management then used this erroneous
information as the basis for his January 1998 suspension. Moreover
complainant contends that in January 1998, this EEO documentation, as
well as the suspension itself, were publicized to his detriment and in
violation of his privacy, and yet those who released the information
were not disciplined. In this context, complainant also contends that
the agency based a 1997 EEO newsletter on the complaint against
him, and that EEO counselors made statements against him during the 1995
to 1997 complaint processing period. When the above matters were not
successfully resolved, complainant filed a formal complaint on July 20,
1999, wherein he identified these matters (claim A).
Complainant also raised the following matters, claimed as reprisal for
role as the discriminating agency official in the EEO complaint against
him (claim B):
(1) his office was required to take a refresher course on customer
service based on only a single negative comment;
(2) the Director uses only first names to address those of Chinese
ethnicity;
(3) he was not interviewed by the EEO counselor;
(4) an EEO Counselor made statements about a certain individual being
involved in the complaint against him; and,
(5) when the Director hand-delivered his 10 day suspension, she told
him how she was treated when she took her car for repairs because the
repair did not think she was from Hawaii.
In its FAD, the agency dismissed claim A for untimely contact with an
EEO Counselor, noting that complainant had previously served as an EEO
Counselor and was aware of the time limits, and that he clearly knew of
the discrimination prior to March 24, 1998, when he acknowledged that
some of the matters he raised in his grievance were EEO related, and
that he was deciding whether to engage in the EEO process. Claim B was
dismissed by the agency for failure to state a claim upon the finding
that complainant had not engaged in EEO activity prior to the events in
question.
On appeal, complainant argues that the correct date to use to determine
timeliness is May 5, 1998, the date the EEO issues were separated from
the grievance issues, arguing that this is when the EEO "clock began to
tick," apparently contending that filing the grievance tolled the time
for filing the EEO complaint. Complainant additionally contends that
the Director failed to inform him about election rights and procedures,
and that the EEO Counselor failed to inform him that his contact was
untimely. Regarding the dismissal of his reprisal claim, complainant
argues that because he was adversely treated as the named discriminating
official in the EEO complaint against him, that this is sufficient to
state a claim of reprisal. Complainant also requests adding additional
claims to his complaint, arguing that they are related, including: sexual
actions and talk by other employees; a subordinate mistakenly attributing
a negative remark to him; and, a situation involving comments that an
former EEO official helped the complainant in the EEO complaint against
him.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 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 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.
Review of the record discloses that complainant does not dispute that
he was aware of the EEO potential of the incidents in claim A at the
time they occurred, as acknowledged in his March 24, 1998 statement,
but instead he argues that by virtue of filing the grievance, and
initiating the negotiated grievance procedure, he tolled the 45 day time
requirement for contacting an EEO counselor. We note, however that the
use of the negotiated grievance procedure does not toll the time limit
for contacting an EEO Counselor. Schermerhorn v. United States Postal
Service, EEOC Request No. 05940729 (February 10, 1995). Moreover, although
complainant claims that he was not informed about the election process
early on in the grievance procedure, we find that the record reflects
that the complainant nevertheless was aware of the election procedure,
and any omission of this nature was therefore harmless. Accordingly,
we AFFIRM the agency's DISMISSAL of claim A for untimely EEO contact.
Volume 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, disability, or reprisal for engaging in protected EEO activity. 29
C. F. R. 05 16 14.103, .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 21, 1994).
Here, we find that complainant has failed to state an actionable claim of
reprisal because the record confirms that he did not engage in protected
EEO activity previous to the instant complaint.<2> Moreover, although
he claims reprisal because of the adversity he experienced as being the
named discriminating official in an EEO complaint, this is not recognized
by the Commission as "protected EEO activity." Cote v. Department of
Veterans Affairs, EEOC Appeal No. 01974213 (August 4, 1998). Accordingly,
we AFFIRM the agency's DISMISSAL of claim B for failure to state a claim.
Finally, regarding complainant's request to add additional claims to
his formal complaint, we note that it appears that these matters are
being raised for the first time on appeal. We advise complainant that
if he wishes to pursue these new matters through the EEO process, he is
advised to contact an EEO Counselor regarding them.
In conclusion, we AFFIRM the FAD's dismissal of the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
July 27, 2000
__________________
Date
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.
2Although the record shows that complainant had been an EEO counselor
at some point in time, he did not identify this as the "protected EEO
activity" upon which the instant claim is based.