01985551
10-06-1999
Howard M. Ellis, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Howard M. Ellis v. Department of the Treasury
01985551
October 6, 1999
Howard M. Ellis, )
Appellant, )
)
v. ) Appeal No. 01985551
) Agency No. 98-4179
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On July 2, 1998, appellant filed a timely appeal with this Commission from
a final agency decision (FAD) received by his attorney of record on June
4, 1998, pertaining to 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. In his complaint, appellant alleged that on
the bases of sex (male) and in reprisal for whistle-blowing activity
"[he] was severly (sic) discriminated and retaliated against because of
having formally complained regading (sic) actions taken by management to
sabotage [his] chances for permanent career employment status. Further,
[he] was harrassed (sic) and forced to endure a hostile work environment
orchestrated by management in order to establish cause for prematurely
terminating [his] employment with the [agency]."
The agency characterized appellant's complaint as alleging that he was
subjected to discrimination on the bases of marital status (single),
and in reprisal for whistle-blowing activity when on March 10, 1998,
he was terminated during his trial period from the position of Customs
Inspector, GS-1890-05. On the basis of that characterization, the
agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,
the agency determined that because marital status and whistle-blowing
activity are not covered bases under the EEOC regulations, appellant's
complaint failed to state a claim.
On appeal, appellant contends that the agency improperly excluded
allegations he raised about having been subjected to sexual harassment by
his supervisor (S1). In support of this contention, appellant provided a
copy of an affidavit he prepared within the context of an Merit Systems
Protection Board (MSPB) appeal which identified allegations of sexual
harassment perpetrated by S1. Appellant also argues that the EEO
Counselor failed to properly process his complaint.
In response, the agency acknowledges that on his pre-complaint counseling
form, appellant checked the box for "sex harassment," but asserts
that when asked by the EEO Counselor what he meant, appellant stated
that he was referring to his belief that he was terminated due to his
marital status. In support of this assertion the agency supplied an
affidavit from the EEO Counselor indicating that at no time did appellant
present any details regarding sexual harassment. Additionally, the
agency contends that in a March 23, 1998 statement by appellant which
detailed the allegations of discrimination he raised, appellant never
identified sexual harassment as one of the issues to be counseled.
Accordingly, for the first time on appeal, the agency contends that
appellant's sexual harassment allegation should be dismissed pursuant
to 29 C.F.R. �1614.107(b), for raising a matter that was not brought to
the attention of an EEO Counselor.
The Commission finds that there is insufficient information in the record
on which to base a decision. Appellant's formal complaint is so broad
as to include both the agency's characterization of his allegations, as
well as his own allegation that he was subjected to sexual harassment.
Moreover, to the extent that the agency sought to dismiss appellant's
sexual harassment complaint pursuant to 29 C.F.R. �1614.107(b), we note
that the agency did not issue a FAD dismissing this issue. Moreover, we
note that although the agency determined that the issue was not brought
to the attention of an EEO Counselor, it did not make a determination
whether it was like or related to the matters brought to the attention
of an EEO Counselor. See 29 C.F.R. �1614.107(b).
Accordingly, the agency's final decision is hereby VACATED. Appellant's
complaint is REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall send appellant a letter requesting that he specifically
identify the issues in his complaint. The letter shall inform appellant
that he is to provide the information within fifteen (15) calendar days
of its receipt, or face dismissal pursuant to 29 C.F.R. �1614.107(g).
Within sixty days of the date of this decision becomes final, the
agency shall issue a notice of processing and/or new FAD concerning the
allegations raised pursuant to part (a.) of this Order.
A copy of the agency's notice of processing and/or new FAD 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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
October 6, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations