01a00488
04-28-2000
Euripides F. Lallos, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Euripides F. Lallos, )
Complainant, )
)
v. ) Appeal No. 01A00488
) Agency No. AVEYRE9908J0070
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On October 18, 1999, complainant filed a timely appeal with this
Commission from a final agency decision received by him on September 20,
1999, pertaining to his complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. <1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
In his complaint, complainant alleged that he was subjected to harassment
on the basis of age (67 years old at the time of the incident) and
listed sixteen examples of the alleged harassment and discrimination
that occurred from 1995 through 1997. The agency issued a final agency
decision (FAD-1) dismissing complainant's complainant for failure to
comply with the applicable time limit. Complainant filed an appeal
with the Commission. In Lallos v. Department of the Army, EEOC Appeal
No. 01985148 (July 27, 1999), the Commission found that complainant had
constructive knowledge of the applicable time limits and that complainant
failed to establish a claim of continuing violation. We affirmed the
agency's FAD-1 dismissal of most of the complaint, however, we remanded
claim (11) for further processing and claims (12), (13), (14), and (16)
for investigation to determine whether complainant contacted the EEO
counselor within the appropriate time limit. The remanded claims were:
In December 1997, complainant was told by a military officer that he
would �never be rated superior, no matter what.�
Complainant's assigned responsibility of plan development was taken
away from him without explanation and given to a military person.
Complainant's supervisor told him that �institutional memory� was not
important.
An Operations, Plans, and Programs military officer told complainant
that there was no need for input from �old folks� like him.
Complainant's supervisor maintained a folder on complainant and refused
to share the information with him.
The agency conducted a supplemental inquiry regarding these claims in
order to determine whether these issues were raised within the forty-five
(45) day time limit within 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).
The agency requested information from complainant and determined that:
claim (11) occurred on December 31, 1997; claim (12) occurred on August
7, 1997; claim (13) occurred around August 16, 1996; claim (14) occurred
on several occasions, most recently on April 18, 1997; and as to claim
(16), complainant became aware that his supervisor has a folder on him in
November 1995, and on December 18, 1997, complainant was refused access
to this folder. Based on the investigation, the agency issued a second
FAD (FAD-2) which dismissed claims (11), (12), (13), (14), and (16)
pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact and also
dismissed claim (11) pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) for failure
to state a claim. Complainant now appeals FAD-2 to the Commission.
Untimely EEO Contact
Under 29 C.F.R. � 1614.107(a)(2), the agency shall dismiss a complaint
or a portion of a complaint that fails to comply with the applicable time
limits contained in 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.105), 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.106), and � 1614.204(c), unless the agency extends the time limits
in accordance with � 1614.604(c).
EEOC 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. EEOC Regulation 29 C.F.R. � 1614.105(a)(2) allows
the agency or the Commission to extend the time limit if complainant
can establish that complainant was not aware of the time limit; that
complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred; that despite due
diligence, complainant was prevented by circumstances beyond his control
from contacting the EEO Counselor within the time limit; or for other
reasons considered sufficient by the agency or Commission.
The EEO counselor's report indicates that complainant contacted an EEO
counselor on January 7, 1998. Upon review of the record, we find that
complainant contacted the EEO office in a timely manner with regard to
claim (11). Accordingly, the Commission finds that the agency improperly
dismissed complainant's claim (11) for untimely EEO contact. As to
claims (12), (13), and (14), we find that complainant contacted the
EEO office after the forty-five (45) time period, therefore, the agency
properly dismissed these claims for untimely EEO contact. In claim (16),
the Commission finds that complainant alleged that his supervisor had
a folder which contained information on him and, on December 18, 1997,
complainant asked to see the folder in order to find information on his
performance evaluations.<2> We find that complainant's claim is that,
on this date, he was denied access to a folder kept by his supervisor.
Complainant contacted an EEO counselor on January 7, 1998, within the
forty-five (45) day time limit. Accordingly, we find that the agency
improperly dismissed claim (16).
Failure to State a Claim
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 or
disabling condition. 29 C.F.R. �� 1614.103, .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).
In FAD-2, the agency found that complainant failed to state a claim with
regard to issue (11). In particular, the agency noted that complainant
was upgraded from a level 4 (Needs Improvement) to level 3 (Success)
for the performance rating period which ended on October 31, 1996 which
complainant received on December 31, 1997.<3> Therefore, the agency found
that the statement alleged in claim (11) did not result in a tangible
action on management's part and therefore, does not state an actionable
claim of discrimination. Upon review of the record, the Commission finds
that the agency mischaracterized complainant's claim. In claim (11),
complainant alleged that he received a lower rating than he deserved
and the statement was evidence that he would never receive the rating
he felt he should have received. Accordingly, the Commission finds that
the agency improperly dismissed claim (11) for failure to state a claim.
CONCLUSION
Therefore, the agency's dismissal of claims (12)-(14) is AFFIRMED.
The agency's dismissal of claims (11) and (16) is REVERSED and the
claims are REMANDED to the agency for further processing in accordance
with this decision and the ORDER 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 (T1199)
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:
April 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2The Commission notes that complainant wanted more information regarding
his performance evaluations because he felt that he was rated too low.
3The agency further noted that complainant does not contest the rating
of level 2 (Excellence in 25-50% of the Objectives) which he received
for the performance period ending October 31, 1997 which he received on
November 17, 1997.