01994327
05-31-2000
Christopher E. Yancey, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Christopher E. Yancey, )
Complainant, )
)
v. ) Appeal No. 01994327
) Agency No. 99-0675
Togo D. West, Jr., ) 99-1518
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On May 6, 1999, complainant filed a timely appeal with this Commission
from two final agency decisions (FADs) received by him on April 7, 1999,
pertaining to his complaints 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.<1> The Commission accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).<2>
Agency Case No. 99-0675
On October 22, 1998, complainant contacted the EEO office regarding claims
of discrimination based on race and sex. Informal efforts to resolve
complainant's concerns were unsuccessful. Accordingly, on December 17,
1998, complainant filed a formal complaint.
The agency framed complainant's claims as follows:
Complainant was assigned duties in September 1997;
Complainant was not promoted in November 1997, January 1998, and August
1998;
Complainant was sexually harassed in January 1998; and
Complainant received a proposed suspension on November 20, 1998.
On March 26, 1999, the agency issued a FAD dismissing the complaint
for untimely EEO Counselor contact. The agency also determined that
claim 3 (sexual harassment) had not been raised with the EEO Counselor.
In addition to untimeliness, claim 4 (proposed suspension) was also
dismissed as a proposal to take a personnel action.
Volume 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
We find that complainant's October 22, 1998 EEO Counselor contact was
beyond the forty-five day time limitation with respect to claims 1
(September 1997), claim 2 (November 1997, January 1998, August 1998),
and claim 3 (January 1998). However, regarding claim 4, we find that
the agency erred in dismissing the claim for untimely counselor contact.
The proposed suspension occurred on November 20, 1998, after complainant
contacted the counselor.
The record reflects that on January 27, 1999, the agency requested
additional information from complainant regarding his untimely contact.
In his response, complainant indicated that he waited more than forty-five
days because he had never been involved in any type of EEO complaint
before. We find that a fair reading of complainant's response indicates
that he was unaware of the time limitations for contacting a counselor.
The FAD, citing the EEO Program Manager, states that posters describing
the EEO process are on display at complainant's workplace. Moreover, the
agency determined that complainant attended a �New Employee Orientation�
where the EEO process and time limits were explained.
Regarding the placement of posters at the agency workplace, we note
that it is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
See Thompson v. Department of the Army, EEOC Request 05910474 (September
12, 1991). However, we have held that a generalized affirmation that an
agency posted EEO information, without specific evidence that the poster
contained notice of the time limits, is insufficient for constructive
knowledge of the time limits for EEO Counselor contact. See Pride
v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993).
While the agency refers to the EEO Program Manager in stating that posters
were on display, it failed to provide an affidavit from the Program
Manager, a copy of the poster, or any other evidence supporting its
conclusion that complainant should be imputed with constructive knowledge.
Moreover, although the agency submitted records demonstrating that
complainant attended various training courses, including �New Employee
Orientation� and Sexual Harassment�, it did not provide evidence regarding
the information presented, particularly the time for contacting an EEO
Counselor. In the absence of this evidence we find that the record is
insufficient to impute complainant with constructive knowledge of the
time limitation. Clearly in it the burden of the agency to have evidence
or proof to support its final decision. See Marshall v. Department of
the Navy, EEOC Request No. 05910685 (September 6, 1991). Therefore, we
find the agency's dismissal of the complaint for untimely EEO Counselor
contact is not supported by the record and is improper.
Claim 3 was also dismissed on the ground that the matter was not raised
with an EEO Counselor. Although the agency concluded that complainant
did not tell the counselor that he was sexually harassed, the issues
in the Counselor's Report include �Sexual Harassment (Quid Pro Quo).�
Accordingly, the Commission finds that the agency improperly dismissed
claim 3.
The agency dismissed claim 4 on the additional ground that the matter
raised was a proposal to take a personnel action. Complainant claimed
he suffered discrimination when he received a proposed suspension.
Therefore, we find that the agency properly dismissed claim 4 pursuant
to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29 C.F.R. �
1614.107(a)(5)).
Accordingly, the agency's dismissal of claim 4 is AFFIRMED. The agency's
dismissal of claims 1, 2, and 3 is REVERSED. Claims 1, 2, and 3 are
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
Agency Case No. 99-1518
Complainant contacted the EEO office claiming he had suffered unlawful
employment discrimination. Subsequently, on February 10, 1999, he filed
a formal complaint based on race and sex. The agency framed the claims
as follows:
assigned duties November 20, 1998;
not promoted in November 1997;
not promoted in June 1998;
not promoted in August 1998;
not promoted on January 26, 1999;
harassed on or around February 9, 1999;
experience unfavorable working conditions from November 1998 - February
1999; and,
issued termination notice that was stayed on January 22, 1999.
On March 29, 1999, the agency issued a FAD dismissing the complaint.
Specifically, claims 1 - 7 were dismissed for raising matters that were
not brought to the attention of a EEO Counselor and were not like or
related to a matter that had been counseled. Claim 8 was dismissed on
the grounds that the matter had been raised in a negotiated grievance
procedure that permits allegations of discrimination. The agency also
determined that claims 2, 3, and 4 stated the same claims that has been
decided by the agency in complainant's December 17, 1998 complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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 record reflects that the only issue raised with the EEO Counselor was
�termination/removal�; specifically, that complainant received a proposed
termination letter on January 8, 1999. Nor do we find the assignment,
promotion and harassment claims to be �like or related� to the counseled
termination claim. Accordingly, the agency's dismissal of claims 1 - 7
was proper and is AFFIRMED. Because of our disposition we do not consider
whether claims 2, 3, and 4 were properly dismissed on other grounds.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency may dismiss
a complaint where the complainant has raised the matter in a negotiated
grievance procedure that permits claims of discrimination. In the instant
case, the record shows that on January 11, 1999 complainant filed a third
step grievance concerning his termination (claim 8). Additionally, the
record shows that in the January 8, 1999 memo informing complainant of
the agency's decision to remove him, he was notified of the three methods
for appealing the removal: appeal to the MSPB, file a discrimination
complaint, or file a grievance. The memo stated that �[w]hichever is
filed first shall be considered an election by you to proceed in that
manner.� As the record indicates that complainant elected to pursue the
matter within the grievance procedure, we find that the agency properly
dismissed claim 8 pursuant to 29 C.F.R. � 1614.107(a)(4). The dismissal
of claim 8 is AFFIRMED.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in Complaint
No. 99-0675 (Claims 1 - 3) 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 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 (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 (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 (T0400)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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:
May 31, 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.
2Volume 64 Fed. Reg. 37,644,37,661(1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.606) provides that the Commission may,
in its discretion consolidate two or more complaints filed by the same
complainant. Accordingly, the Commission exercises its discretion to
consolidate the cases herein.