01986502
05-09-2000
Dood Johnson, III, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Dood Johnson, III v. Department of the Navy
01986502
May 9, 2000
Dood Johnson, III, )
Complainant, )
)
v. ) Appeal No. 01986502
) Agency No. 98-00205-006
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On August 25, 1998, complainant, by his attorney, filed a timely appeal
with this Commission from the agency's final decision (FAD), dated
July 24, 1998, received on July 31, 1998, dismissing his April 9,
1998 formal EEO complaint of unlawful employment discrimination.<1>
See Fed. Reg. 37,644; 37,659 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402(a)).
Although the record is not entirely clear in this matter, the salient
facts appear to be the following: according to the EEO Counselor's report
(ECR), complainant, a Store Worker, initiated EEO counseling on July
25, 1997, with regard to a July 23, 1997 counseling memo, issued by his
second line supervisor ("SLS"), for purportedly refusing an order from
a warehouse supervisor. Complainant claimed the counseling memo was
issued to harass him because of his previous purported "whistleblower"
activities. The ECR identified race (Black) as the basis for complainant's
claim of discrimination. According to the ECR, in pertinent part, the
Counselor did not conduct a final interview with complainant "after
explaining to him the counseling memo was not placed into an official
personnel file [OPF] and management had no plans to take an adverse
action against [complainant]."
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race ("Afro-American") in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Complainant also alleged discrimination based on reprisal in
connection with his purported "whistleblowing" activities in the course
of a criminal investigation. The gravamen of his complaint, set forth
in an attached narrative, was that SLS (who is White) was harassing
him, apparently because complainant had accused him of stealing some
years earlier when complainant was interviewed as part of the criminal
investigation.<2>
The FAD, in substance, defined complainant's complaint as raising the
following issues, based on race and "in reprisal for his participation
in a naval investigation":
(1) SLS removed from consideration complainant's name which had been
submitted for an Employee of the Month award;
(2) SLS told complainant's then-supervisor to "�write him up'";
(3) SLS told complainant's present supervisor to "�write up'" complainant
because he did not place all the luggage in one department;
(4) SLS denied complainant's request to work in the warehouse; and
(5) a named supervisor informed SLS that complainant had disobeyed an
order to off-load a truck. SLS said another incident would warrant
action.<3>
The FAD dismissed complainant's complaint for failing to raise the above
issues with an EEO Counselor. See 64 Fed. Reg. 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.105(a)). The
FAD stated that the issues complainant raised in his complaint were
not like or related to those issues raised with the EEO Counselor.
The FAD also advised complainant to contact the EEO Counselor, if he
wished to pursue the issues in his formal complaint, within seven days
of his receipt of the FAD.
The gravamen of complainant's appeal is that he presented the narrative
appended to his complaint to the EEO Counselor. The gravamen of the
agency's response to complainant's appeal is that the EEO Counselor
again met with complainant on October 16, 1998, and that complainant
stated that he did not want to file another complaint. The agency also
quoted complainant as stating that the dismissed issues were provided
as supporting information to his 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).
The Commission finds the agency erred in dismissing complainant's
complaint. We find complainant's complaint sets forth a claim of
harassment for prohibited reasons and that the individual allegations are
merely examples of that claim. In this context, we find complainant's
claim, with regard to the July 23, 1997 counseling memo, was raised
with the Counselor when complainant initiated counseling on July 25,
1997, and that the other allegations are like or related to the issue
of the counseling memorandum. Therefore, the Commission will direct the
agency to resume processing complainant's April 9, 1998 complaint at the
point at which processing ceased. However, the Commission is dismissing
complainant's reprisal basis because we find he has alleged discrimination
based on his purported "whistleblowing" activities and not on an EEO
activity under any statute enforced by the Commission. Accordingly,
we dismiss complainant's reprisal basis (whistleblowing) for failure to
state a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter cited as 29 C.F.R. �� 1614.103(a); and .107(a)(1)).
Finally, the Commission calls attention to the EEO Counselor's and
agency's improper processing of complainant's complaint in this matter. It
is undisputed, for example, that the Counselor did not provide complainant
with the required Notice of Final Interview, irrespective of how the
Counselor may have viewed complainant's claims. In fact, the Commission
finds no evidence that the Counselor provided complainant with any of
the rights mandated by the Commission's regulations set forth at Volume
64 Fed. Reg. 37,656 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. � 1614.105). And see the Commission's Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
as revised, November 9, 1999, Ch. 2, � III. The Commission also finds that
the Counselor's actions were contrary to her responsibility to be neutral
and impartial. See EEO-MD-110, Ch. 1, � VI. The Commission also finds
that the agency failed to include with the record evidence, particularly
in the form of the EEO Counselor's report, the purported October 16,
1998 counseling session. Upon remand, the Commission advises the agency
to see that the Counselor, if still in that position, reviews the
applicable Commission's regulations and relevant portions of EEO-MD-110,
and to ensure that complainant is advised of all required rights relevant
to the processing of his complaint.
Having reviewed the entire record, the arguments on appeal including those
arguments not expressly addressed herein, and for the foregoing reasons,
the Commission hereby REVERSES the FAD. Complainant's complaint is
hereby REMANDED for further processing consistent with the Commission's
decision and applicable regulations. Complainant's reprisal basis
(whistleblowing) is hereby DISMISSED. The parties are advised that the
Commission's decision in this matter is not a decision on the merits of
complainant's complaint. The agency shall comply with the Commission's
ORDER set forth below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims 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 (R0400)
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:
May 9, 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.
2As part of the relief sought, complainant sought punitive damages.
However, "punitive damages are not available to Federal employees."
See Jones v. Department of Health and Human Services, EEOC Request
No. 05940377 (January 23, 1995), citing Graham v. U.S. Postal Service,
EEOC Request No. 05940132 (May 19, 1994).
3This purported incident appears to have been the subject of SLS' July
23, 1997 counseling memorandum.