01A61180
08-18-2006
George S. Floyd, Sr., Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, (Army National Guard Bureau), Agency.
George S. Floyd, Sr.,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
(Army National Guard Bureau),
Agency.
Appeal No. 01A61180
Agency No. T-0141-VA-A-01-01-RAO
DECISION
Complainant filed an appeal with this Commission from the agency's final
decision dated October 28, 2004, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
� 621 et seq.
Given our decision herein, we find it necessary to examine the
circumstances from which this matter arrived before the Commission.
Complainant was employed as a Military Personnel Clerk, at the agency's
Virginia National Guard facility in Portsmouth, Virginia.[1] By letter
dated October 23, 2000, complainant initiated the EEO process by informing
the "VAPA-EEOM" that he was filing a formal complaint regarding his removal
from his position in the Technician Program on October 5, 2000 on the basis
of race. The agency acknowledged receipt of complainant's letter and
responded by letter dated October 31, 2000, which letter informed
complainant that the agency did not have a State Equal Employment Manager
(SEEM) available to process his complaint, but that the agency would
arrange for processing in cooperation with the agency's National Guard
Bureau.
Thereafter, on November 6, 2000, an official identified as the State Equal
Employment Manager (SEEM), sent complainant a letter which directed
complainant to complete a complaint form (agency form DD Form 713-5-R)
instructing complainant to sign and return the form without dating it. An
undated, completed DD Form 713-5-R, signed by complainant, appears in the
record.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Black), age (48), and reprisal for
prior protected EEO activity when:
1. On October 5, 2000, complainant was removed from the Technician
Program.
a. Management failed to submit medical paperwork in a timely
manner to the next higher management officials once paperwork was
received from complainant.
b. Complainant had to complete and forward his own LOD (Line of
Duty).
c. LOD (Line of duty) was submitted three times due to the fact
medical documents had been removed from the original packet.
d. Management never discussed or informed complainant about his
profile until June 12, 2000.
e. Complainant discovered that his medical documents were altered
to give the appearance that he was released to work by his doctor.
f. Complainant did not receive authorization to go to naval
hospital until February 2000, though he was injured October 16, 1999.
g. Complainant's LOD was lost from November 15, 1999 until January
12, 2000.
h. Complainant's request for financial assistance was denied.
i. The agency violated the LOD process.
j. Complainant's supervisor called him and when complainant replied
that he had no source of income, the supervisor laughed at him and
hung up.
k. The agency directed the Portsmouth Naval Hospital to do a
profile about complainant.
1. Complainant's co-workers were harassed when they started to
support complainant.
m. The agency did not adequately communicate with complainant prior
to his termination. When complainant called for information, no one
would admit to knowing anything about his case until June 2000.
n. Agency procedures for giving complainant his profile were not
followed.[2]
By letter dated December 12, 2000 the SEEM acknowledged receipt of
complainant's complaint. The following language is contained therein.
This notice acknowledges receipt on 1 December 2000, of your
discrimination complaint, dated 23 October 2000. Based on personal
delivery the complaint is deemed filed on 26 October 2000. Unless the
issues in the complaint require clarification, a notice of the
acceptance or dismissal of the complaint will be mailed to you within
10 days after the date that the complaint was received. [3]
What occurred thereafter is somewhat unclear, however, it appears that
complainant did not receive the promised subsequent notice indicating that
his complaint was accepted for investigation until March 2001. Thereafter,
it appears that complainant's complaint was investigated, however,
complainant was never provided with a copy of the agency's record of
investigation or informed of his right to request a hearing before the
Commission or a final decision by the agency.[4]
On May 18, 2001, complainant filed a civil action (identified as Civil
Action No. 2:01CV362) in the United States District Court for the Eastern
District of Virginia, Norfolk Division, which complaint encompassed the
same claims and bases identified in his administrative EEO complaint.
Approximately three and a half years later, the agency issued a Final
Order, dated October 28, 2004, dismissing complainant's complaint. The
agency's order explains as follows:
1. The National Guard Bureau Office of Equal Opportunity and Civil
Rights has reviewed the official complaint file of SGT Floyd
(complainant) to include the 22 May 2001 United States District Court
summons, Norfolk Division. The court summoned and required to serve
upon the plaintiff/complainant, George Sylvester Floyd, Sr., an answer
to the complaint which was served. The complainant was given twenty
(20) days after service of the summons upon him, exclusive of the day
of service to respond. Furthermore, the summons stated that if the
complainant failed to do so, judgment by default was to be taken
against him for the relief demanded in the complaint. The complainant
was advised through this summons that he should file his answer with
the Clerk of the Court within a reasonable period of time after
service. To date, National Guard Bureau Office of Equal Opportunity
and Civil Rights have received no correspondence from SGT Floyd
indicating that he complied in the U. S. District Court or provided
the Clerk of the Court with any information pertinent to his
complaint. Inasmuch as the complainant was unresponsive to the
request of the court, this office has determined that no further
action is required to administratively process this complaint. This
case is administratively closed as provided for in Chapter 8,
paragraph 8-14 of the National Guard Regulation (Army) 690-
600/National Guard Regulation (Air Force) 40-1614.
2. Please note that this complaint does not lessen the responsibility of
the Adjutant General to determine the merits of the allegations raised
and to take corrective or remedial action, if warranted. This exhausts
the administrative process established by the above referenced
regulation.
We deem the agency's decision to be a proper dismissal of the complaint
pursuant to 29 C.F.R. �1614.107(a)(3) for filing a civil action on the same
matter as the complaint. Although the agency's decision failed to provide
complainant with any appeal rights, complainant filed the instant appeal on
November 19, 2005. By order dated September 26, 2001, the District Court
ruled in favor of the agency for various reasons including granting summary
judgment on the merits of the civil action.
The agency's decision dismissing the complaint is AFFIRMED.
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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 18, 2006
__________________
Date
-----------------------
[1] This information appears in a form SF-50 that appears in the file
showing the effective date of complainant's termination as September 8,
2000. However, complainant's position is alternately referred as a
position in the agency's Technician Program.
[2] We have edited for clarity, to the extent possible from the record, the
incidents described in complainant's complaint that preceded his
termination.
[3] Apparently complainant's complaint was filed sometime after the SEEM
letter of November 6, 2000.
[4] Complainant states on appeal that in May 2001, the appointed
investigators attempted to force him to sign an unidentified blank form.
The record suggests that in May 2001 the investigators attempted to issue
complainant a Notice of Right to File a Complaint, although the agency had
already acknowledged receipt of complainant's complaint, and an
investigation had been conducted.