01A14604_r
05-21-2002
Jerome H. Newell, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Jerome H. Newell v. Department of the Army
01A14604
May 21, 2002
.
Jerome H. Newell,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A14604
Agency No. BEBGFO0010A0470
DECISION
Complainant filed the instant appeal from an agency decision dismissing
his complaint filed June 1, 2001. For the reasons set forth below,
we vacate the agency's final decision. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race,
sex, and reprisal for prior EEO activity as follows:
The former Deputy Garrison Commander and the FGGM DOC Director
(complainant's former supervisor) asked complainant to return to
work from his vacation on August 2, 1999, because they believed it was
mission-essential for him to be on the job;
The Garrison Commander (now Installation Commander), and the Acting Deputy
Garrison Commander, negated a signed Negotiated Settlement Agreement,
dated October 19, 1999, addressing complainant's EEO discrimination
complaints (#BGBF9512FO530 and #BGBF9612G0500);
After the former Deputy Garrison Commander, and the FGGM DOC Director
assured complainant that his leave would not be lost in his returning
from vacation, the agency denied the restoration of 80 hours of annual
leave in a memorandum, dated January 7, 2000;
The FGGM DOC Director issued complainant a Letter of Warning concerning
his work performance, dated December 8, 1999;
The Acting Deputy Garrison Commander refused to sign complainant's
performance appraisal for the period from July 1, 1999 to June 30, 2000;
Management officials allowed a fellow contract specialist to issue
erroneous and negative statements about complainant within the Military
District of Washington (MDW) and the FGGM DOC;
Management officials then ignored the recommendation of the MDW Principal
Assistant Responsible for Contracting, who, after investigating charges
made by the contract specialist, issued a written directive, dated July
18, 2000, to the FGGM DOC Director, that he review the matter and take
appropriate action against the co-worker; and
The agency developed a flawed Army Regulation 156 investigative report,
which produced a negative opinion of complainant's actions concerning
a roofing contract (#DADW36-98-D-0009) with NAPA Development Corporation.
After returning to work October 25, 1999, Acting Deputy Garrison Commander
required complainant to perform his normal full-time supervisory workload
and continued to assign him additional projects, although his doctor
did not release complainant to return to work full-time until November
29, 1999.
The agency dismissed claims 1 and 3 - 9 on the grounds that the most
recent alleged discriminatory event occurred on July 18, 2000, but
complainant did not initiate contact with an EEO Counselor until October
13, 2000, which is beyond the forty-five (45) day limitation period.
Timeliness
On appeal, complainant argues that he contacted an EEO Counselor on
December 9, 1999, the day he received the Letter of Warning (claim 4).
The record reveals initial EEO counseling documents bearing this
date, including a memorandum entitled, "Aggrieved Person's Rights
and Responsibilities." We cannot however, determine which claims
complainant presented (nor their disposition) at the time of complainant's
December 1999 EEO contact. Furthermore, the agency has not addressed
complainant's claim that he initiated EEO Counselor contact on December
9, 1999. Under these circumstances, we must vacate the agency's decision
to dismiss claims 1 and 3 - 9 and we shall remand claims 1 and 3 - 9 to
the agency so that the agency may supplement the record with information
to clarify the nature of complainant's claimed December 1999 EEO contact
and redetermine the timeliness of complainant's claims in light thereof.
Settlement Agreement
The agency dismissed claim 2 on the grounds that this claim alleges
breach of a negotiated settlement agreement dated October 19, 1999.
The agency stated that complainant should have raised the breach claim
with the agency's office in Arlington, Virginia, rather than with the
local EEO Office. The Commission finds that the agency was on notice
of the breach claim and should have processed the matter pursuant
to 29 C.F.R. � 1614.504(b). It is unclear from the record, however,
how complainant is specifically claiming the agreement was breached.
Furthermore, it is unclear from the record whether the agency has fully
complied with the agreement. Therefore, we shall remand the matter so
that the agency may contact complainant to clarify the breach claim and
then issue a decision on the matter pursuant to � 1614.504(b).
CONCLUSION
Accordingly, the agency's dismissal of complainant's complaint and
the settlement breach claim is hereby VACATED. The complaint and the
settlement breach claim are REMANDED to the agency for further processing
in accordance with this decision and the Order herein.
ORDER
The agency is ORDERED to take the following actions:
1 The agency shall conduct a supplemental investigation and place evidence
in the record establishing the date(s) on which complainant sought EEO
counseling and the specific claims presented in each instance.
Within 30 calendar days of the date this decision becomes final,
the agency shall issue a notice of acceptance of the complaint for
investigation or shall issue a new decision dismissing the complaint.
The agency shall request information from complainant to clarify the
specific breach of settlement claim(s).
Within 30 calendar days of the date this decision becomes final, the
agency shall issue a decision addressing whether the agency has breached
the October 19, 1999 settlement agreement.
A copy of the agency's notice accepting the complaint or new decision
dismissing the complaint must be sent to the Compliance Officer as
referenced herein. A copy of the agency's decision on the breach of
settlement claim(s) must be sent to the Compliance Officer as referenced
herein.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
May 21, 2002
__________________
Date