01A44148_r
02-04-2005
Harold Ross, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Harold Ross v. Department of Commerce
01A44148
February 4, 2005
.
Harold Ross,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A44148
Agency No. 02-56-68
DECISION
Complainant filed a timely appeal with this Commission concerning 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. In a complaint dated July 19, 2002, complainant alleged that he
was subjected to discrimination on the bases of race (African-American)
and sex (male) when:
Complainant was denied overtime.
Complainant was denied a within grade increase.
Complainant was denied the authority to work a maxi-flex schedule.
Complainant was unfairly evaluated on his work performance.
On January 14, 2003, the agency dismissed issues (1) - (3) of
complainant's complaint pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The agency
found that the latest alleged incident occurred in November 2001;
however, complainant failed to initiate timely EEO Counselor contact.
Alternatively, the agency dismissed issue (2) pursuant to 29 C.F.R. �
1614.107(a)(4), for raising the same matter in a negotiated grievance
procedure. The agency noted that complainant raised this issue in a
grievance on April 17, 2002, and the grievance was closed on June 3, 2002.
Subsequently, on April 23, 2004, the agency dismissed issue (4)
(and the entire complaint) pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely filing of the formal complaint. The agency noted that
complainant received a Notice of Right to File on June 26, 2002.
The agency acknowledged that complainant was erroneously mailed an
additional Notice of Right to File which he received on July 8, 2002.
The agency stated that complainant did not file his formal complaint
until July 19, 2002, which was twenty-three days after his receipt of the
first Notice of Right to File. The agency states that complainant was
properly informed of the applicable filing period in the first Notice
of Right to File and was not misled by the agency through receipt of a
second Notice of Right to File.
Alternatively, the agency states that issue (4) should be dismissed
pursuant to 29 C.F.R. � 1614.107(a)(5), as moot. The agency notes
that complainant claims that he was discriminated against from August
10, 2001, to mid-November 2001, with regard to an unfair evaluation
of work performance. The agency notes that on August 10, 2001,
complainant received a mid-year report with a rating of �marginal� from
his supervisor. Complainant was placed on a Performance Improvement
Plan (PIP) starting in mid-August 2001 and ending in mid-November 2001.
The agency states that on January 31, 2002, complainant filed a grievance
regarding the mid-year report �rating.� The agency explains that on April
23, 2002, complainant received a PIP Final Report rating of �marginal�
and on May 23, 2002, his rating was changed to �fully successful.� The
agency explains that on May 30, 2002, complainant received a within
grade increase and promotion from a GS-0986-06-03 to a GS-0986-06-04.
The agency states that on June 3, 2002, complainant's grievance was closed
as settled. The agency claims that the issues of the unfair evaluation of
work performance and the denial of the within grade increase are properly
dismissed as moot due to the fact that interim relief, specifically,
resolution of the union grievance, has completely and irrevocably
eliminated the effect of the alleged discrimination and because there
is no reasonable expectation that the alleged actions will recur.
In response to complainant's appeal, the agency reiterates its position
that the entire complaint should be dismissed on the grounds that
complainant failed to file a timely formal complaint. Alternatively,
the agency argues that issues (1), (2), and (3) were properly dismissed
for untimely EEO Counselor contact. The agency states that these alleged
incidents occurred in November 2001; however, complainant did not raise
these issues with an EEO Counselor until May 28, 2002.
Additionally, the agency argues that issue (2) was properly dismissed
because it was raised in a negotiated grievance procedure. The agency
states that it should have additionally dismissed issue (4) on the grounds
that it was raised under the negotiated grievance procedure. Finally,
the agency argues that issues (2) and (4) were properly dismissed as
moot due to the fact that interim relief, specifically the resolution of
the grievance, completely and irrevocably eliminated the effect of the
alleged discrimination, and because there is no reasonable expectation
that the employment actions will recur.
The record contains a copy of complainant's formal complaint dated July
19, 2002, in which he challenges his August 10, 2001 mid-year report
listing him as �marginal.� Complainant states that instead of using
random sampling his supervisor �pulled and rated [his] whole docket
range of extensions, oppositions and cancellations.� He claims that
this was in violation of his position description and performance plan.
Complainant explains that he was then placed on a PIP from mid-August to
mid-November 2001. He states that after receiving this PIP, he went to
the union to file a grievance but nothing was filed. Complainant states
that in mid-October 2001, he was told that his oppositions for the
last two months were unsatisfactory and was given a report that listed
all of his oppositions. Complainant states that he contacted the union
again but was told to file a grievance when he received his final report
from his PIP. Complainant states that he requested overtime and to be
placed on flex-time several times at the end of his PIP which was denied
because his final report was not finished. Complainant states that his
PIP ended in November 2001, but he did not receive his PIP final report
until April 23, 2002, which contained the same �marginal� rating as the
mid-year report. Complainant states that after receiving this report,
he filed a grievance with the union, which is ongoing. As a remedy for
his complaint, complainant asks for reimbursement for the overtime that
was lost due to the unfair rating. Additionally, he requests that his
within grade increase be made retroactive to November 2001, that the PIP
be removed frm his records, that he be given a �commendable� rating for
fiscal year 2001, that he receive his grade 8 effective October/November
2002, and training for supervisors.
The record contains a Step 1 form from The National Treasury Employees
Union date stamped by Employee Relations Division January 31, 2002.
The Step 1 form lists complainant as the grievant and states that
complainant became aware of the occurrence on January 24, 2002. The Step
1 form identifies the alleged violation as �[e]mployee was given a rating
that does not reflect his actual performance.� The record contains a
one line sentence from an unidentifiable source dated June 3, 2002, that
the �case closed per union/grievant received within grade and promotion.�
The record contains a �Request for Personnel Action� requesting a within
grade increase for complainant which is signed as authorized by Person
A, Technical Program Manager, on May 30, 2002. The record contains a
�Notification of Personnel Action� showing that effective June 2, 2002,
complainant was promoted to a GS-0986-07-04.
The record contains a November 6, 2001 letter informing complainant
of the denial of his within grade increase. The letter states that
complainant will be given ninety days to demonstrate performance at the
fully successful level which will run from November 18, 2001, through
February 23, 2002. The letter states that complainant's performance will
be reevaluated after the end of the ninety days to determine whether a
within grade increase will be granted or whether the denial will remain
in effect.
The EEO Counselor's Report indicates that complainant is challenging the
May 23, 2002 final rating. According to the EEO Counselor's Report,
complainant claims that his supervisor reviewed all of his trademark
applications instead of a random sampling. The EEO Counselor's
Report notes complainant received his mid-year review in July 2001,
and was placed on a PIP from August 12, 2001, through November 17, 2001.
The EEO Counselor's Report states complainant was denied his within grade
increase on November 6, 2001, and was given a ninety-day trial period to
improve his performance. The EEO Counselor's Report states that at the
same time, complainant was denied overtime and maxi-flex work schedule.
Upon review, we find that issues (1), (2), and (3) were properly dismissed
for untimely EEO Counselor contact pursuant to � 1614.107(a)(2). With
regard to issue (2), the record indicates that complainant was denied
his within grade increase on November 6, 2001. However, complainant
did not initiate EEO Counselor contact until May 28, 2002, which is
beyond forty-five days after the denial of his within grade increase.
With regard to issues (1) and (3), although complainant states that he
was denied overtime and the opportunity to work a maxi-flex schedule, he
fails to show that he was denied such opportunities within the forty-five
days prior to his EEO Counselor contact. On appeal, complainant has
presented no persuasive arguments or evidence to warrant an extension
of the applicable limitations period.
Upon review, we find that issue (4) was improperly dismissed by the
agency. In issue (4), complainant claims that his work performance
was unfairly evaluated. Specifically, we find he is challenging his
final ratings of April 23, 2002 and May 23, 2002. We find that the
agency's dismissal of issue (4) on the grounds that complainant failed
to timely file a formal complaint was improper. The record indicates
that complainant received a Notice of Right to File on June 26, 2002,
informing him that he must file his complaint within fifteen days of his
receipt of the notice. The record indicates complainant was then sent a
second Notice of Right to File which was received by complainant on July
8, 2002. In the present case, we find that the second notice superceded
the first notice in terms of determining the timeliness of the present
complaint. The agency found that the complaint was filed on July 19,
2002. Therefore, we find that complainant's complaint was filed within
the 15-day filing period from his receipt of the notice of right to file
on July 8, 2002. Accordingly, the agency improperly dismissed issue (4)
on the grounds that complainant failed to timely file a formal complaint.
Additionally, we find that issue (4) was improperly dismissed on the
grounds of mootness. In issue (4), complainant claims that his work
performance was unfairly evaluated which resulted in him receiving unfair
final rating of �marginal� on April 23, 2002, which was changed to �fully
successful� on May 23, 2002. In his formal complaint, complainant
requests a �commendable� (which is higher than �fully successful�)
rating for fiscal year 2001. Thus, we find that interim relief has
not completely eradicated the effects of the alleged discrimination.
Accordingly, issue (4) was improperly dismissed as moot.
Although not included as a grounds for dismissal in its final decision,
we note that in response to complainant's appeal, the agency argues that
issue (4) should also be dismissed on the grounds that it was raised in
the grievance procedure. We note that complainant filed a grievance on
January 31, 2002, regarding his July 2001 mid-year �marginal rating.� The
record indicates that complainant received a final rating of �marginal�
on April 23, 2002, and a second final rating of �fully successful� on
May 23, 2002. We note, however, that the record does not contain a copy
of the applicable negotiated grievance procedure indicating whether
discrimination can be raised via the grievance process. The agency
does not claim it placed such evidence in the record. Accordingly,
we reject the agency's argument on appeal that issue (4) should be
dismissed on the grounds that complainant elected to raise this issue
via the grievance process.
The agency's decision to dismiss issues (1), (2), and (3) is AFFIRMED.
The agency's decision to dismiss issue (4) is REVERSED and issue (4) is
REMANDED for further processing in accordance with the Order listed below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 4, 2005
__________________
Date