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