01985894
03-29-2000
Michael E. Gibson, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Michael E. Gibson v. Department of the Treasury
01985894
March 29, 2000
Michael E. Gibson, )
Complainant, )
)
v. ) Appeal No. 01985894
Lawrence H. Summers, ) Agency No. 98-2204M
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On July 28, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on July 6, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. <1> In his complaint,
complainant alleged that he was subjected to discrimination and a hostile
work environment on the bases of race (Black), sex (male), age (45),
and in reprisal for prior EEO activity when:
Between June and October of 1997, complainant was subjected to a Time
and Attendance Investigation;
Complainant was forced to resign effective November 30, 1997; and
On April 8, 1998, complainant was issued a Bill of Collection for Time
and Attendance abuse and unauthorized telephone calls.
The agency dismissed issues (1) and (2) pursuant to EEOC Regulation
29 C.F.R. � 1614.105(a)(1), on the grounds that complainant failed to
timely contact an EEO Counselor. The agency also found that complainant
failed to state a continuing violation which would justify waiver of
the time limits for timely contacting an EEO Counselor. Specifically,
the agency stated that complainant should have reasonably suspected
discrimination on July 10, 1997, when agency investigators requested
that he provide documentation regarding his time and attendance or
alternatively when he was forced to resign in November 1997. Therefore,
the agency found complainant's February 4, 1998 counselor contact
was untimely. In addition, the agency dismissed issue (3) under 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)), on the grounds that complainant failed to
state a claim. Specifically, the agency stated that complainant failed
to show that he was harmed by the receipt of the Bill of Collection.
Finally, the agency dismissed complainant's complaint on the grounds
that he did not state a hostile work environment claim. Specifically,
the agency stated that the Bill of Collection could not be characterized
as harassment since no action was taken concerning the findings of the
investigation and complainant voluntarily resigned. Also, the agency
stated that this allegation is not sufficient or egregious enough to
state a harassment claim.
On appeal, complainant claims that he did not reasonably suspect
discrimination on July 10, 1997, just because Security was investigating
his time and attendance since he was told that this investigation occurred
as a result of an anonymous tip. Instead, complainant claims that he
did not suspect discrimination until he received the response to his
Freedom of Information (FOIA) request in January of 1998 and therefore
states that his February 4, 1998 counselor contact was timely.
With regard to issues (1) and (2), we find that complainant failed
to timely initiate EEO Counselor contact. The record contains
complainant's December 12, 1997 FOIA request concerning the Time and
Attendance Investigation. We note that a copy of this FOIA request
was also sent to EEO Counseling Services and conclude that complainant
did suspect that the Time and Attendance Investigation was motivated
by discrimination prior to his FOIA request. Similarly, we reject
complainant's contention that a continuing violation existed since we
find that the six-month investigation and the alleged forced resignation
were sufficiently distinct to trigger complainant's duty to contact
an EEO Counselor. Accordingly, we find that complainant's February 4,
1998 counselor contact was untimely.
With regard to issue (3), we find that complainant has stated a claim.
The Commission finds that the portion of the bill declaring that
complainant is responsible for $4,744.69 for time and attendance abuse
and unauthorized telephone calls and assessing a 5.0% annual fee for
late payments renders complainant aggrieved. Therefore, we find that
complainant has stated a claim.
Accordingly, the agency's decision to dismiss issues (1) and (2) was
proper and is hereby AFFIRMED. The agency's decision to dismiss issue
(3) was improper and is REVERSED and this issue is REMANDED for further
processing in accordance with the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claim 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.