01983192
03-15-1999
Gordon Bentley, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Gordon Bentley v. Department of the Navy
01983192
March 15, 1999
Gordon Bentley, )
Appellant, )
)
)
v. ) Appeal No. 01983192
) Agency No. 97-48160-001, 97-48160-002, 97-48160-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act(42
U.S.C. 2000e et seq., and the Rehabilitation Act (29 U.S.C. 791 et seq.)
The final agency decision was dated February 3, 1998. The appeal was
postmarked March 16, 1998 with no evidence of the date of the appellant's
receipt. Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed two
allegations of discrimination as stated in the complaint.
BACKGROUND
The record indicates that on September 19, 1996, appellant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts to
resolve his concerns were unsuccessful. On December 24, 1996, appellant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination when, among other things,:
He was transferred into PMS401 from PMO418;
The appellant contacted an EEO counselor again on February 5, 1997
regarding additional claims of discrimination when:
(1) He was subjected to additional incidents of harassment;
(2) He was placed on AWOL on January 30, 1997;
(3) He was given a Letter of Reprimand on February 3, 1997;
(4) He was given a Letter of Caution on February 5, 1997;
Efforts to resolve the claims were unsuccessful and the appellant filed
a formal complaint regarding these incidents on February 26, 1997.
On March 19, 1997 the appellant contacted an EEO counselor a third time
raising additional claims of discrimination when:
(1) The agency failed to send pertinent records to the Office of Workers
Compensation Programs (OWCP);
(2) The agency controverted his OWCP claim;
Efforts to resolve these and other claims were also unsuccessful and
the appellant filed a third complaint on April 18, 1997.
On February 3, 1998, the agency consolidated the three complaints and
issued a final decision dismissing the appellant's claim of discrimination
when he was transferred from PMO418 to PMO401 due to untimely contact
with an EEO counselor. The agency also dismissed the appellant's claim
of discrimination when it controverted his OWCP claim for failure to
state a claim.
Specifically, the agency found that the appellant was transferred
effective January 8, 1996 but he did not contact an EEO counselor until
September 19, 1996. The appellant argues in this appeal that he may
have been transferred on paper in January 1996, but in actuality it was
later. He does not state on what date he believed the transfer occurred.
He also argues that evidence of discrimination did not become available
to him until September 1996.
Regarding the agency's alleged improper controversion of the appellant's
OWCP claim, the agency found that an OWCP claim cannot be collaterally
addressed in an EEO complaint. The appellant does not specifically address
the dismissal of this issue in his statement in support of his appeal.
ANALYSIS AND FINDINGS
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
We agree with the agency that the appellant had a reasonable suspicion
of possible discriminatory conduct with respect to his transfer at a
much earlier date than September 19, 1996. The appellant does not deny
or dispute that the agency's records reflect he had been transferred
effective January 8, 1996. Rather he suggests that it happened later
without offering any support. The record contains a letter written
by the appellant, dated January 31, 1997 to another employee which
alludes to a transfer date of June 24, 1996. He does not rely on this
date in his appeal, however, therefore, it is not given much weight. We
are persuaded that, without evidence to the contrary, the date of the
appellant's transfer was January 8, 1996.
The appellant was also aware that his transfer was possibly discriminatory
even before it happened. The appellant makes reference in his complaint to
statements made by his supervisors such as, "...after I was transferred,
the supervisor would stick me in a corner and put me down" and employees
were told..."I would be dealt with when transferred". The appellant
voiced many other objections in his complaint about his transfer such
as the lack of a position description, a failure to convert him to a
GS series and not being allowed to compete for his previous job. These
facts support a reasonable suspicion of discrimination at the time the
transfer occurred on January 8, 1996.
We also agree that the appellant's claim that he had been discriminated
against because the agency controverted his OWCP claim fails to
state a claim. The Commission has held that an EEO complaint alleging
discrimination in connection with a workers' compensation claim before
OWCP states a claim within the Commission's jurisdiction only under
limited circumstances. Schultz v. U.S. Postal Service, EEOC Request
No. 05950173 (September 26, 1996); Hogan v. Department of the Army, EEOC
Request No. 05940407 (September 24, 1994)(emphasis added). The Commission
has recognized that the agency has the right to represent its position
and interest in the OWCP forum, and will not review decisions which would
require it to judge the merits of a workers' compensation claim. Hogan,
EEOC Request No. 05940407. Based on this reasoning, we see no reason to
overturn the agency's dismissal of the appellant's claim.
CONCLUSION
Accordingly, we AFFIRM the agency's decision to dismiss two allegations
of the appellant's complaint as discussed herein.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 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 (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:
March 15, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations