Michael E. Gibson, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01985894 (E.E.O.C. Mar. 29, 2000)

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.