01983940
02-16-2000
Guy D. Robinson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Guy D. Robinson v. Department of the Navy
01983940
February 16, 2000
Guy D. Robinson, )
Complainant, )
)
v. ) Appeal No. 01983940
) Agency No. DON-98-33191-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's April 1, 1998 decision dismissing
Complainant's complaint on the grounds of untimely EEO counselor contact
was not proper, in part, pursuant to the pursuant to the provisions
of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(2).<1>
The record shows that Complainant sought EEO counseling on December 29,
1997, alleging that he had been discriminated against on the bases of
race (African American), color (black), national origin (American) and
age (1949) when: (a) he was not selected for promotion to Supervisory
Realty Specialist, GS-1170-13, Announcement Number NAP95-00497-AM; and,
(b) he was not selected for promotion to Supervisory Realty Specialist,
GS-1170-13, Announcement Number NAP97-00878-JA. The EEO Counselor's
Report also shows that Complainant alleged that although in 1995 he
was rated as the best qualified for the position in question, he was
not selected.
Complainant subsequently filed a formal complaint alleging that he had
been discriminated against on the bases of race (African American),
color (black), national origin (American Citizen), reprisal for prior
EEO activity and age (1949) when: (a) on February 15, 1995, he was not
selected for promotion to Supervisory Realty Specialist, GS-1170-13,
Announcement Number NAP95-00497-AM; and, (b) on December 15, 1997,
he was not selected for promotion to Supervisory Realty Specialist,
GS-1170-13, Announcement Number NAP97-00878-JA.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. The agency found that Complainant had
failed to raise the 1997 nonselection as part of his formal complaint.
Therefore, the agency considered only the 1995 nonselection in its final
decision. The agency further found that Complainant could not raise
the basis of reprisal for a 1995 nonselection because he had not engaged
in EEO activity prior to November 1997. The agency also dismissed the
basis of national origin after finding that citizenship is not one of
the bases included in Title VII. Finally, the agency dismissed the
basis of age after finding that the selectee was older than Complainant.
On appeal, Complainant contends that he indeed raised the 1997
nonselection in his formal complaint. He further contends that he
raised the basis of national origin in his complaint, not based on
American citizenship but on his African American heritage. Finally,
he claims that his complaint is not untimely because he was unaware of
discrimination until November 1997, when he discovered that the Status
of Forces Agreement had been violated by the agency.
A review of the record persuades the Commission that the agency erred, in
part, in its final decision. Complainant's formal complaint shows, that
contrary to the agency's determination, Complainant raised not only the
1995 nonselection but the 1997 nonselection as well.<2> Therefore, the
agency should have considered both nonselections in its final decision.
Regarding the February 15, 1995 nonselection, the record shows that
Complainant was aware, in 1995, that although he had been rated as the
best qualified for the position, he was not selected. He claims that
until November 1997, he did not know that the Status of Forces Agreement
had been violated by the agency in its selection process. The Commission
applies a "reasonable suspicion" standard to the triggering date for
determining the timeliness of the contact with an EEO counselor. Cochran
v. United States Postal Service, EEOC Request No. 05920399 (June 18,
1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination may have become apparent. Id.; Paredes v. Nagle, 27 FEP
Cases 1345 (D.D.C. 1982). Complainant knew in 1995, that he was the best
qualified and that he had not been selected for the position in question.
Nevertheless, he did not seek EEO counseling until December 1997.
Accordingly, his EEO counselor contact in December 1997, was untimely.
A review of the complaint persuades the Commission that Complainant did in
fact raise the issue of his 1997 nonselection. Accordingly, the agency
erred by finding that this issue was not part of Complainant's formal
complaint of discrimination. The record shows that Complainant engaged
in EEO activity since November 1997, and he claims that his participation
in EEO activity had an impact on the December 15, 1997 nonselection.
Accordingly, the basis of reprisal was improperly dismissed by the
agency. Moreover, the agency dismissed the basis of age after finding
that the selectee in question was older than Complainant and therefore,
Complainant had no valid claim. The Commission finds that in so doing,
the agency made a finding of fact without providing to Complainant the
opportunity of an investigation of his claim. Finally, the agency
dismissed the basis of national origin after finding that American
citizenship is not one of the bases included by EEOC Regulations.
The Commission has consistently held that nothing in Title VII makes it
illegal to discriminate on the basis of citizenship. Hipona V. OPM,
EEOC Appeal No. 01861791 (September 30, 1986). However, on appeal,
Complainant stated that he claims the basis of national origin pursuant
to his status as an African American. Accordingly, the basis of national
origin was properly included by Complainant in his complaint.
Accordingly, the agency's decision dismissing claim (a) on the grounds
of untimely EEO counselor contact was proper and is hereby AFFIRMED.
The dismissal of claim (b) was improper and is hereby REVERSED. Claim (b)
is hereby REMANDED for further processing in accordance with this decision
and applicable regulations. The bases of age, reprisal and national
origin will be considered by the agency in its processing of claim (b).
ORDER (E1199)
The agency is ORDERED to process the remanded claim (claim (b)) 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 an
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 (M1199)
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). 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).
COMPLAINANT'S 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:
February 16, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.
2 The record shows that in a facsmile communication, Complainant
identified this issue as "issue # 11".