Chris C. Coleman, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 11, 2007
0120073037 (E.E.O.C. Sep. 11, 2007)

0120073037

09-11-2007

Chris C. Coleman, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Chris C. Coleman,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120073037

Agency No. ARTYAD07FEB00610

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 15, 2007, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the

Commission finds that complainant's complaint was improperly dismissed

pursuant to 29 C.F.R. � 1614.107(a)(2).

On February 9, 2007, complainant initiated contact with an Equal

Employment Opportunity (EEO) Counselor alleging that he was subjected

to discrimination on the bases of race (African-American), disability

(ankle, foot, neck & back conditions, migraine headaches, and a pain

syndrome), and age (over 40) when the agency (1) terminated his employment

on February 6, 2007, (2) required him to perform duties outside of his

position description, and (3) subjected him to hostile work environment

harassment.

To support his harassment claim, complainant alleged that (3a) on April

6, 2006, a Section Chief (S1) did not allow him to obtain a military or

forklift driver's license, (3b) in October 2006, S1 did not allow him to

attend training at DAU (Log 101), (3c) in June 2006, a contractor (C1)

informed complainant's supervisor that complainant failed to properly

document data in the "Repair Data System," (3d) in April 2006, C1 used

complainant's workspace to "housebreak" his dog and S1 was fully aware of

said use, and (3e) on August 31, 2006, a snake attacked complainant and

a coworker and management failed to take action until the Occupational

Health and Safety Administration intervened.

Subsequently, complainant filed a formal EEO complaint alleging that the

agency subjected him to harassment. He cited the actions alleged in

(3a) through (3e). For relief, complainant requested removal of the

termination personnel action from his file, re-employment, promotion

with back-pay, and compensatory damages. Also, in pertinent part, he

listed a witness who would speak to the agency's attempt to terminate

her without giving a reason.

In its May 15 final decision, the agency dismissed complainant's complaint

pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely initial contact with

an EEO Counselor. The agency cited (3a) through (3e) as complainant's

claim of discrimination. The instant appeal from complainant followed.

On appeal, complainant stated that the agency failed to address (1)

and (2), which were timely claims, in its final decision and that,

under a continuing violation theory, those claims would have made

the remaining claims timely. In opposition, the agency stated that

complainant abandoned (1) and (2) when he did not indicate them on his

formal complaint and that it dismissed (3a) through (3e) appropriately.

As an initial matter, we find that complainant did not abandon claim

(1), his termination, in his formal complaint. A fair reading of the

complaint in its entirety indicates that complainant sought to grieve

his termination, as he requested removal of his termination record from

his file and reemployment, and planned to present a witness to speak to

past termination practices of the agency. As such, we find that the

agency failed to address (1), which we consider a dismissal of (1),

and it did so inappropriately.

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in �� 1614.105, 1614.106 and

1614.204(c), unless the agency extends the time limits in accordance

with � 1614.604(c), or that raises a matter that has not been brought

to the attention of a Counselor and is not like or related to a matter

that has been brought to the attention of a Counselor. Regulation 29

C.F.R. � 1614.105(a)(1) provides that an aggrieved person must initiate

contact with an EEO 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 Supreme Court has held that a complainant alleging a hostile work

environment will not be time barred if all acts constituting the claim

are part of the same unlawful practice and at least one act falls within

the filing period. See National Railroad Passenger Corp. v. Morgan,

536 U.S. 101, 117 (2002). In the case at hand, we find that complainant

alleged hostile work environment harassment when he initiated contact

with an EEO counselor on February 9, 2007 and that he provided (1),

his termination on February 6, 2007, as evidence to support his claim of

discrimination. Further, we find that complainant alleged (2) through

(3e) as further incidents to support his claim. We find that (1) falls

within the 45-day filing period and renders timely complainant's claim

of harassment, inclusive of incidents (2) through (3e). Upon careful

review of the record and based on the above, the Commission REVERSES

the agency's final decision and REMANDS it 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(1994 & Supp. IV 1999). 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 (M0701)

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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 11, 2007

__________________

Date

2

0120073037

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120073037