01983859
06-09-1999
Fred Dodge, Appellant, v. Director, National Gallery of Art, Agency.
Fred Dodge, )
Appellant, )
)
v. ) Appeal No. 01983859
) Agency No. 98-07 Earl A. Powell, III, )
Director, )
National Gallery of Art, )
Agency. )
___________________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final decision of the agency
concerning his complaint 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. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960.001.
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to initiate contact with an EEO
counselor in a timely manner.
The record reveals that appellant filed a formal equal employment
opportunity (EEO) complaint with the agency on January 28, 1998, alleging
he had been discriminated against by the Staff Assistant/Timekeeper in
the Facilities Management Office because of his race (Caucasian) and/or
sex (male) when she applied leave policies differently to appellant than
to his coworkers. He had initially contacted an EEO Counselor regarding
this allegation on December 10, 1997. In his formal complaint, appellant
presented the following examples of this alleged disparate treatment:
(1) on December 2, 1997, the Staff Assistant/Timekeeper placed appellant
on Absent Without Official Leave (AWOL) status when he was entitled to
leave under the Family Medical Leave Act (FMLA);
(2) in January 1998, the Staff Assistant/Timekeeper complained to the
Operations Department Manager that appellant had failed to sign his
leave slip, but did not complain about two African American employees
who had also failed to sign their leave slips;
(3) on two separate incidents (January/February 1997 and April/May 1997)
the Staff Assistant/Timekeeper tried to persuade appellant's supervisor
to change his leave status from Leave Without Pay (LWOP) to AWOL; and
(4) on January 21, 1998, the Staff Assistant/Timekeeper convinced the
Operations Department Manager to overrule appellant's work schedule
which had already been approved by his first-line supervisor.
By final decision dated April 1, 1998, the agency accepted allegation
nos. 1 and 2 of appellant's complaint, but dismissed allegation nos. 3
and 4<1> for failure raise these matters with an EEO counselor in a
timely manner. It is from this decision that appellant now appeals.
Upon careful review of the record, as well as consideration of the
parties' statements on appeal, the Commission finds that the agency was
incorrect in dismissing any portion of appellant's complaint. As an
initial matter, the Commission notes that although the agency treated
appellant's complaint as containing four separate allegations, a fair
reading of the complaint, in conjunction with the EEO Counselor's report,
reveals that appellant was asserting his general concern that the Staff
Assistant/Timekeeper engaged in a pattern of treating him less favorably
than his non-Caucasian, non-male coworkers with regard to her application
of time and attendance policies and practices. The four separate "issues"
identified by the agency in its final decision were not intended by
appellant to be separate allegations, but rather examples supporting his
general allegation of discrimination by the Staff Assistant/Timekeeper.
Therefore, the agency erred in dismissing allegation no. 4, one of those
examples, for failure to raise the matter with the EEO counselor.
The Commission also finds that the agency erred in dismissing allegation
no.3 for untimely EEO counselor contact. While this example of
discriminatory treatment occurred beyond the 45-day time limitation for
EEO counselor contact set forth in Commission regulations, the Commission
concludes that it is sufficiently "interrelated" to allegation nos. 1
and 2, and the general allegation of a pattern of discrimination by
the Staff Assistant/Timekeeper, to constitute a cognizable continuing
violation claim, rather than a series of discrete acts which should have
been challenged in a timely manner. See Rohrer v. Department of Health
and Human Services, EEOC Request No. 05940965 (April 12, 1995); Verkennes
v. Department of Defense, EEOC Request No. 05900700 (September 20, 1990);
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989). Therefore, the Commission will remand the complaint
back to the agency to accept and investigate appellant's allegation
that the Staff Assistant/Timekeeper engaged in ongoing acts of race
and/or sex discrimination with respect to her application of time and
attendance policies and practices, as evidenced by the four examples
provided in appellant's complaint and any other relevant evidence which
emerges during the investigative process.
Accordingly, the agency's final decision dismissing a portion of
appellant's complaint is REVERSED and that allegation is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency is ORDERED to process appellant's remanded complaint in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to the
appellant that it has received the remanded complaint within thirty (30)
calendar days of the date this decision becomes final and shall define
the accepted issue as follows: Whether the Staff Assistant/Timekeeper
engaged in a pattern of discrimination against appellant on the bases of
his race (Caucasian) and/or sex (male) with respect to her application
of time and attendance policies and practices, as evidenced by the
four examples presented in appellant's complaint and any other relevant
evidence which emerges during the investigative process. The agency shall
issue to appellant a copy of the investigative file and also shall notify
appellant of the appropriate rights within ninety (90) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
June 9, 1999
_________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Allegation nos. 3 and 4 are referred to as "Issue #A" and "Issue #B",
respectively, in the agency's final decision.