01990981
09-07-1999
Marcus L. Bowen v. Department of Agriculture
01990981
September 7, 1999
Marcus L. Bowen, )
Appellant, )
)
v. ) Appeal No. 01990981
) Agency No. 980461
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
On November 13, 1998, appellant filed an appeal with this Commission
from a final agency decision (FAD) dated September 22, 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.<1> In his complaint, appellant alleged that he was subjected to
discrimination on the bases of race (African-American) and in reprisal
for prior EEO activity when:
On October 8, 1997, appellant was not selected for the position of
Criminal Investigator, GS-1811-11/13, Law Enforcement and Investigations
[LE&I], under vacancy announcement number WO-442-97;
By letter dated August 28, 1997, the Regional Special Agent in Region
8 wrote to the Director of Forest Service LE&I [Director], "hire
[appellant]. . . . [I]t is time to show that we mean business on
moving more minorities into leadership positions. I plan on doing the
same thing here [Region 8]. . . . [T]his will keep the Lawrence Lucas'
of the world off our backs;"
On or about May 28, 1997, the Director told appellant regarding his
career in the Forest Service, that if the Director selected appellant
for promotion, "you will catch hell and so will I;"
On December 3, 1996, the Director threatened that if his name appeared in
any complaint, appellant would be retaliated against and advised, "Don't
step on your d**k [appellant], or you will be in Milwaukee forever," and
in later conversation [date unknown], regarding a hate mail incident and
conversation, appellant was advised that if he mentioned the conversation
to anyone he would "f*** [appellant's] career," and advised appellant
to stay way from an employee who had filed an EEO complaint; and
The agency failed to extend appellant's detail assignment that ended
May 24, 1997.
The agency accepted allegations (1) - (4), but dismissed allegation
(5) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely
counselor contact.
On appeal, appellant argues that he did not contact a counselor sooner
because he feared reprisal from the Director, who previously threatened
appellant as described in allegation (4), and was considering appellant
for a permanent position.
The record contains a copy of the Counselor's Report, which provides
that appellant initially contacted an EEO Counselor on November 17,
1997. The record also includes a copy of appellant's formal complaint,
dated March 14, 1998, in which appellant explains that in the discussion
referenced in allegation (4), the Director referred to an African-American
EEO complainant as a "criminal" who had evidence planted to support his
complaint by a "crack head" co-worker.<2> Appellant also alleged in his
complaint that the agency retaliated against him for giving a deposition
in his co-worker's complaint describing the Director's discriminatory
practices.
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 Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Allegation (5) occurred more that 45-days prior to appellant's EEO
contact. Further, the Commission has repeatedly held that mere fear
of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO Counselor. See Parker v. Department of
Veterans Affairs, EEOC Request No. 05940436 (Feb. 9, 1995). However, an
extension is justified where an appellant's fear of reprisal is based on
"severe intimidation," such as a supervisor's threat to fire an employee
if he files a complaint. Armstrong v. United States Postal Service,
EEOC Appeal No. 01985904 (July 3, 1997); cf. Duncan v. Department of
Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998) (finding
that fear of reprisal does not justify untimeliness when appellant
articulates no concrete reason to fear retaliation, and appellant's fear
is not credible given appellant's prior EEO contact.); but see Posateri
v. United States Postal Service, EEOC Appeal No. 01960880 (Sept. 23,
1996) (delay in filing not justified where appellant was told that if
she ever filed a complaint, she would never receive her job back).
In the present case, appellant's fear of reprisal is not credible given
that he already disregarded the Director's warnings by giving a deposition
in his co-worker's EEO complaint. Clearly, appellant was not so fearful
that he could not have initiated timely EEO contact. Therefore, appellant
has not provided adequate justification to extend the time limitations
with regard to allegation (5). However, it is well-settled that past
alleged discriminatory events, which were not the subject of timely
complaints, may be used as background evidence for a timely complaint,
although they otherwise have no legal consequences under Title VII.
See United Airlines v. Evans, 431 U.S. 553, 558 (1977). Consequently,
appellant may use allegation (5) as background evidence for his accepted
allegations.
CONCLUSION
Accordingly, the agency's dismissal of allegation (5) is AFFIRMED,
but the allegation may be used as background for appellant's accepted
allegations.
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 (S0993)
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:
Sept. 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to
submit evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt of the
agency's final decision. See, 29 C.F.R. �1614.402.
2The Counselor's Report reveals that a co-worker recalls the Director
making at least some of the statements in allegation (4), but "believes
[the threat] was a heads-up to all of them, not just appellant."