Harmon Bradford, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01991682 (E.E.O.C. Oct. 14, 1999)

01991682

10-14-1999

Harmon Bradford, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Harmon Bradford v. Department of Defense

01991682

October 14, 1999

Harmon Bradford, )

Appellant, )

) Appeal No. 01991682

v. ) Agency No. DT-98-042

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

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 of

1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted in

accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of appellant's complaint for failure to state a claim, for failure to

raise a matter to an EEO Counselor, and for raising a matter already

raised in prior EEO complaints.

BACKGROUND

Appellant filed a formal complaint on July 14, 1998, alleging

discrimination on the bases of race (Black), color (Black), and sex

(male) when:

a) on March 27, 1997, appellant's supervisor intimidated appellant when

he made a recommendation regarding proposed stock locations and identified

problems in the agency;

b) on May 14, 1997, appellant's supervisor assigned a white male

appellant's Supply System Analyst duties while appellant was assigned

warehouse duties;

c) on October 24, 1997, appellant was harassed when his supervisor

criticized appellant's work in the presence of other employees;

d) on October 27, 1997, management gave appellant new work requirements

while other co-workers (who were white) did not have to comply with the

requirements;

e) on October 29, 1997, management revised the organization chart which

appellant felt was done in order to discriminate against him;

f) on February 5, 1998, appellant was denied his request as a systems

analyst for access to the Information/Management System;

g) on February 11, 1998, appellant did not receive a new personal computer

and software to perform his system analyst duties;

h) on March 13, 1998, management detailed appellant out of his work area

to the Product Evaluation Division and assigned appellant's duties to

another co-worker;

i) on January 23, 1998, the supervisor who rated appellant had not

supervised appellant for a period of ninety (90) days;

j) in January 1997, the agency denied appellant the opportunity for a

GS-2003-12 position; and

k) during the period July 1990, through February 1996, appellant raised

the complaints of continuing reprisal and harassment in the form of

promotion denials and personnel practices.

In its FAD, the agency dismissed allegations (a), (e), (f), and (g)

for failure to state a claim, pursuant to 29 C.F.R. �1614.107(a).

The agency sent appellant a letter dated September 22, 1998, which

requested specific information concerning these allegations. Appellant's

response failed to provide the specific information requested, to show

how appellant was treated differently than other similarly situated

employees, to provide the harm appellant suffered. Allegations (i) and

(j) were dismissed for raising an issue not raised during EEO Counseling,

pursuant to 29 C.F.R. �1614.107(b). The agency dismissed allegation (k)

pursuant to 29 C.F.R. �1614.107(a) finding that appellant raised these

matters in a prior EEO complaint and civil action. In its FAD, the

agency did accept allegations (b), (c), (d), and (h) for investigation.

This appeal followed.

ANALYSIS AND FINDINGS

Failure to State a Claim

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�1614.106(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 its FAD, the agency dismissed allegations (a), (e), (f), and (g)

for failure to state a claim. In allegation (a), appellant alleges that

his supervisor intimidated him as retaliation for pointing out problems

within the agency. Allegation (e) states that appellant claims that a

new organization chart was issued with a discriminatory intent. Finally,

appellant alleges in (f) and (g) that the agency has interfered in his

job as a systems analyst by denying him hardware, software, and access

to systems required to fulfill his duties. Upon review, we find that

allegations (a), (e), (f), and (g) are related to a term or condition

of appellant's employment and, therefore, state a claim. Accordingly,

we find that the agency improperly dismissed allegations (a), (e),

(f), and (g) pursuant to 29 C.F.R. �1614.107(a).

Failure to Raise a Matter to the EEO Counselor

EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that

an agency shall dismiss a complaint or portion thereof which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later allegation or complaint is "like or related"

to the original complaint if the later allegation or complaint adds

to or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Calhoun v. United States Postal Service, EEOC Request No. 05891068

(March 8, 1990); Webber v. Department of Health and Human Services,

EEOC Appeal No. 01900902 (February 28, 1990).

With regard to allegations (i) and (j), the agency dismissed these

allegations finding that appellant did not raise these allegations

with the EEO Counselor. Upon review of the record, we find that these

issues were included in appellant's memorandum to the EEO Counselor

dated April 15, 1998, in which he lists the items he wished to discuss

with the counselor. Appellant specifically mentions that on January 23,

1998, appellant's supervisor rated appellant without having served as

his supervisor for more than 90 days. Appellant also alleged in that

memorandum that on January 8, 1997, the agency denied him the opportunity

for a GS-2003-12 promotion by limiting the position. We find that these

issues were raised to the EEO Counselor's attention through appellant's

memorandum dated April 15, 1998. Therefore, the Commission finds that

the agency improperly dismissed these allegations.

Stating the Same Claim that Has Been Decided by the Agency

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

The Commission has consistently held that the agency bears the burden of

obtaining sufficient information to support a reasoned determination in

its final decision. See Ericson v. Department of the Army, EEOC Request

No. 05920623 (January 14, 1993) (stating that the agency has the burden

of providing evidence and/or proof to support its final decision).

In allegation (k), appellant alleges that he faced continuing reprisal

and harassment from July 1990 through February 1996. Appellant alleges

that he has been denied promotion opportunities, not provided job audits,

and other general claims of discriminatory acts. Appellant lists the

various incidents in his pre-counseling complaint form. Upon review of

appellant's prior complaints, we find that appellant has alleged the

events from July 1990 through March 27, 1994, in prior complaints and

civil actions. However, we find that incidents after March 27, 1994

though February 1996, have not been addressed in any prior complaint.

Therefore, we find that the portion of appellant's allegation (k)

involving incidents from July 1990 through March 1994, is dismissed

pursuant to 29 C.F.R. �1614.107(a). However, we find that the agency has

failed to provide information to support the dismissal of the portion

of allegation (k) which alleges discriminatory events from April 1994

through February 1996. Accordingly, we find that the agency's decision

regarding this portion of allegation (k) was improper.

Merits of Appellant's Complaint

Although this issue is not before the Commission, we find that we must

clarify an issue in the agency's FAD. After a review of the agency's

final decision, it seems that the agency has addressed the merits of

appellant's complaint without a proper investigation as required by

the regulations. We find that one of the agency's articulated reason

for the action in dispute, i.e., that appellant failed to provide how he

was treated differently than other similarly situated employees, goes to

the merits of appellant's complaint, and is irrelevant to the procedural

issue of whether he has stated a justiciable claim under Title VII.

See Osborne v. Department of the Treasury, EEOC Request No. 05960111

(July 19, 1996); Lee v. United States Postal Service, EEOC Request

No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal

Service, EEOC Request No. 05910642 (August 15, 1991).

CONCLUSION

Accordingly, the decision of the agency is AFFIRMED in part regarding a

portion of allegation (k) and REVERSED in part and REMANDED for further

processing of allegations (a), (e), (f), (g), (i), (j), and a portion of

(k) in accordance with this decision and the proper regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 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. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

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. 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 (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:

Oct. 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations