Joseph M. Santos, Complainant,v.Spencer Abraham, Secretary, Department of Energy Agency.

Equal Employment Opportunity CommissionFeb 12, 1992
01a35363_r (E.E.O.C. Feb. 12, 1992)

01a35363_r

02-12-1992

Joseph M. Santos, Complainant, v. Spencer Abraham, Secretary, Department of Energy Agency.


Joseph M. Santos v. Department of Energy

01A35363

April 15, 2004

.

Joseph M. Santos,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy

Agency.

Appeal No. 01A35363

Agency No. 03-0040HQ

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 27, 2003, dismissing 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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.

On December 24, 2002, complainant initiated EEO Counselor contact.

Informal efforts to resolve his concerns were unsuccessful.

In his formal complaint, dated April 16, 2003, complainant alleged that

he was subjected to discrimination on the bases of race, national origin,

sex, color, and age.<1>

In its final decision, determined that complainant's complaint was

comprised of the following three claims:

[complainant] received a marginal performance rating for fiscal year

2002;

[complainant] received a proposed three-day suspension; and

[complainant was] sexually harassed by [his] supervisor.<2>

The agency dismissed claims (1) - (3) on the grounds of untimely EEO

Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically,

the agency determined that the date complainant was allegedly

discriminated against was October 30, 2002, and that complainant's

initial EEO Counselor contact on December 24, 2002 was untimely.

The agency also dismissed claim (2) on the alternative grounds of

alleging a proposal to take a personnel action, pursuant to 29 C.F.R. �

1614.107(a)(5).

On appeal, complainant argues asserts that he is being subjected to

a continuous hostile work environment, and that the dismissal of his

complaint for untimely EEO Counselor contact is improper.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Claim (1) - Performance Rating

In his formal complaint, complainant claimed that he was purportedly

given an �improper cash proffer� by his supervisor upon receipt of his

marginal performance rating. However, complainant also states therein

that he is excluding the issue regarding the offer of cash from his

EEO case. Thus, the Commission finds that claim (1) solely involves

the issue of complainant's receipt of a marginal performance rating.

The Commission finds that claim (1) was properly dismissed for untimely

EEO Counselor contact. In his formal complaint, complainant stated

that on October 30, 2002, he received a �marginal� annual rating for his

performance from his supervisor. Complainant stated that his supervisor

also gave him $150 in cash, which prompted him to ask his supervisor,

�[w]hy do you give me cash but also give me a poor performance rating?�

Complainant further stated that he �immediately reported this unusual

occurrence� to a union representative. The Commission determines

that complainant reasonably suspected discrimination when he received

his performance rating on October 30, 2002. Moreover, in regard to

complainant's assertion that this action was part of a hostile work

environment, we determine that this matter was a discrete action was

is not amenable to analysis as part of a continuing violation.

Claims (2) - (3) Proposed Three-Day Suspension and Sexual Harassment

Claim

The Commission determines that the agency improperly dismissed claims

(2) and (3) for untimely EEO Counselor contact. In its final decision,

the agency stated that the date of the alleged discrimination was October

30, 2002; however, in his formal complaint, complainant stated that he

received a memorandum for the proposed suspension, claim (2), on March 31,

2003, which was subsequent to his initial EEO contact in December 2002.

Furthermore, the record contains a memorandum to complainant dated March

31, 2003, regarding the proposed suspension. In regard to claim (3),

complainant does not specify an incident date in his formal complaint.

In addition, the Commission finds that the agency improperly dismissed

claim (2) for alleging a proposal to take a personnel action. We find

with regard to claims (2) and (3) that the agency improperly fragmented

complainant's claims. In complainant's formal complaint, complainant

claimed that he is being subjected to a hostile work environment.

Specifically, complainant stated that �[t]his ongoing hostile environment

has included denial of training opportunities, manipulation of work

assignments, and constant disparagement.� Regarding claim (3),

complainant stated in his formal complaint that his supervisor has

called him into her office to discuss personal issues and has contacted

him at home. Moreover, on appeal, complainant states that the hostile

work environment includes, but is not limited to, the proposed three-day

suspension.

On appeal, complainant states that the ongoing hostile environment

consists of new incidents which include, but are not limited to, a

detail to the Office of Information Technology since May 6, 2003, and

complainant's proposed involuntary separation from agency employment.

We determine that claims (2) and (3), when viewed in conjunction with

complainant's assertions on appeal, are sufficient to state a hostile

work environment claim. See Cervantes v. USPS, EEOC Request No. 05930303

(November 12, 1993).

Accordingly, the agency's decision dismissing claim (1) is AFFIRMED.

The agency's decision dismissing claims (2) and (3) is REVERSED.

Those claims, as defined herein as a hostile work environment claim,

are REMANDED to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

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

that it has received the remanded claims 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

April 15 ,2004

__________________

Date

1We note that the agency did not indicate,

in its final decision, that complainant also filed his complaint on the

bases of age and national origin, though complainant stated those bases

in his formal complaint. The agency is reminded that it must clearly

and explicitly reject issues or bases, and offer appeal rights regarding

them, in order to have such claims stated in a complaint dismissed.

See Jozelin v. Department of Veterans Affairs, EEOC Appeal No. 01920040

(February 12, 1992).

2The agency's final decision contains a footnote after the third claim;

however, there is no text that corresponds to this footnote.