0120110176
12-09-2011
Joseph T. Rozmiarek, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Joseph T. Rozmiarek,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110176
Agency No. ARSHAFTER10JUN02434
DECISION
Complainant timely filed an appeal from the Agency's decision dated
September 13, 2010, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Hawaii Civilian Personnel Advisory Center (CPAC) Director
at Fort Shafter, Hawaii. On August 24, 2010, Complainant filed a
formal complaint. In its final decision, the Agency characterized
Complainant’s complaint as alleging that the Agency subjected him to
discrimination on the bases of sex (male) and age (65) when:
1. On January 20, 2010, Complainant received a performance evaluation
containing comments that outlined examples of why he received a “-1”
rating on the Customer Focus Contributing Factor, which resulted in an
adjusted rating of “2” for Job Objective #2, and an overall rating
of “3” with two shares; and
2. On April 21, 2010, Complainant received a partial response for a
Request for Reconsideration of Rating of Record, dated March 12, 2010.
On September 13, 2010, the Agency issued a final decision in which
it dismissed Complainant’s complaint. Specifically, the Agency
dismissed Claim 1 for untimely EEO Counselor contact. The Agency also
dismissed Claim 2 on the basis that it failed to state a claim because
it collaterally attacked a grievance process.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the Agency mischaracterized his complaint.
Complainant further contends that Agency failed to provide him with a
copy of the Counselor’s Report. The Agency contends that it properly
dismissed Complainant’s complaint. The Agency further contends
that alleged matters in Complainant’s complaint are “vague and
have nothing to do with discriminatory allegations.” The Agency
maintains that Complainant discussed his performance evaluation during
the counseling process, and when he realized that he made untimely EEO
counselor contact, chose to file his formal complaint about unrelated
allegations that a co-worker made derogatory comments about him.
ANALYSIS AND FINDINGS
As an initial matter, we note that the parties disagree about the framing
of Complainant’s complaint. A review of the record reveals that in
his formal complaint, Complainant alleged that the Agency subjected him
to sex and age discrimination when:
1. On May 22, 2010, an Agency official [C1] wrote to another Agency
official [C2] and referenced a conversation in which the Director of
the Pacific Region complained of problems with Hawaii CPAC in hiring
gate guards and a congressional inquiry that she initiated regarding
problems with CPAC;
2. On May 28, 2010, C2 passed the Pacific Region Director’s complaint
on to the West Region Director;
3. The Pacific Region Director has not allowed Complainant to attend a
conference at Fort Shafter, made disparaging remarks in public about
old men trying to play softball at a senior service school, and was
“unfavorably disposed” to others based on their age and sex; and
4. The Pacific Region Director had a discussion with the Hawaii Deputy
Commander who rated Complainant in which she shared her perceptions,
which were based on “non-facts and misrepresentation.”
The Agency maintains that Complainant’s complaint concerns claims
that were not raised during counseling. However, a review of the
Counselor’s Report reveals that, during counseling, Complainant
alleged that the Pacific Region Director attempted to “elevate
misinformation, innuendo, gossip and maligning hearsay” to his chain
of command. Complainant further alleged that during a staff meting,
the Pacific Region Director spoke about seeing old men playing softball.
Complainant also alleged that that the Pacific Region Director disliked
older men and mistreated male co-workers. Additionally, Complainant
stated that all CPAC Directors' ratings were reviewed by Civilian
Human Resources Agency (CHRA) Regional Managers under the guidance of
the Pacific Region Director, and she likely inserted negative comments
about into his appraisal. Complainant further stated that he did not
learn about her comments about him until the Pacific Region Director
sent him an email on June 1, 2010, that contained the same type of
derogatory comments that were contained in his performance evaluation.
Complainant concluded that the Pacific Region Director inserted comments
into his performance evaluation.
Likewise, in his formal complaint, Complainant alleged that the Pacific
Region Director influenced his performance evaluation by making derogatory
comments and allegations about him and his division. Consequently,
we find that the matters Complainant raised during counseling are like
or related to the matters he raised in his formal complaint. Further,
we determine that the gravamen of Complainant’s complaint is that he
was dissatisfied with his NSPS performance evaluation and objected to
comments contained in the evaluation. Thus, contrary to the Agency’s
determination, we find that Complainant’s complaint states a viable
claim.
Although Complainant received the evaluation in January 2010, he contends
that he did not acquire reasonable suspicion of discrimination until
June 1, 2010, when he made a connection between the comments in the
evaluation and comments the Pacific Region Director allegedly made about
him and other employees. Under these particular circumstances, we find
that Complainant did not acquire reasonable suspicion of discrimination
until June 1, 2010, three days before he initiated EEO counselor contact.
Consequently, we find that Complainant initiated timely EEO counselor
contact for this complaint.1 Therefore, we conclude that the Agency
improperly dismissed Complainant’s complaint.
Finally, we note that in an email to an EEO Specialist dated August 27,
2010, and on appeal, Complainant maintained that the EEO counselor failed
to provide him with a copy of the Counselor’s Report. The Agency failed
to respond to this allegation. We note that Management Directive 110
(MD-110) provides that the EEO counselor must provide a complainant with
the report of the Counselor’s Report within 15 days after notification
by the EEO Officer or other appropriate official that a formal complaint
has been filed. Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at Chap. 2, § VIII.A (Nov. 9, 1999).
Consequently, upon remand of this complaint, the Agency must provide
Complainant with a copy of the Counselor’s Report within 15 days of
the date this decision becomes final.
CONCLUSION
Accordingly, the Commission REVERSES the Agency’s dismissal of
Complainant’s complaint for the reasons set forth in this decision and
REMANDS this matter to the Agency for further processing consistent with
this decision and the ORDER set forth below.
ORDER
The Agency is ORDERED to undertake the following actions:
1. The Agency is ordered to process the remanded complaint in accordance
with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the
Complainant that it has received the remanded complaint 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.
2. The Agency shall provide Complainant with a copy of the Counselor’s
Report within 15 days of the date this decision becomes final.
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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 9, 2011
Date
1 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
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. Dep’t of the Navy,
EEOC Request No. 05970852 (Feb. 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 become
apparent.
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0120110176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110176