01990893
01-14-2000
Michael K. Bowen, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Michael K. Bowen v. Department of Veterans Affairs
01990893
January 14, 2000
Michael K. Bowen, )
Complainant, )
)
v. ) Appeal No. 01990893
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On November 11, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
October 27, 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 its FAD, the agency defined
complainant's complaint as alleging discrimination on the basis of race
(African-American) when:
In September 1997, complainant was suspended for thirty (30) days;
In September 1992, complainant was counseled about attendance; and
On July 28, 1998, complainant's supervisor harassed complainant by
charging complainant with eight (8) hours absent-without-leave (AWOL),
even though complainant was in a leave status.
The agency dismissed claims (1) and (2) for untimely counselor contact.
Specifically, the agency found that complainant did not contact an
EEO Counselor until July 28, 1998, more than forty-five days after the
incidents alleged in claims (1) and (2). The agency further explained
that the reason complainant gave for his delay � because he did not
believe in the system until his facility Director was no longer in
charge of complaint processing � did not justify an extension of the
applicable time limit. The agency dismissed claim (3) for being moot,
because the agency already dropped the AWOL charge, and paid complainant
for the eight hours.
By letter dated September 16, 1998, the agency requested that
complainant explain why he failed to timely contact an EEO counselor.
In his response, dated October 8, 1998, complainant explained that he
"didn't believe in the system" because his facility director controlled
the processing of complaints, and had not done anything with his past
complaints. The Counselor's Report, dated August 20, 1998, provides that
complainant initially contacted a counselor on July 28, 1998. The Report
shows that complainant filed prior complaints in 1995 and 1997, while
the Dayton facility Director was in control of complaint processing.
The Counselor's Report also details a conversation between complainant
and the EEO Counselor, wherein complainant raised the issues listed in
the FAD, and several others. Complainant claimed that he was not allowed
to work overtime because he was on light-duty, while other light-duty
employees were allowed to work overtime. Complainant also raised
concerns of harassment from his supervisor's holding letters concerning
complainant's enrollment in a government sponsored school until it was
too late for complainant to enroll. Complainant explained that he asked
for documentation regarding his enrollment on June 30, 1998, but his
supervisor refused. Complainant also asserted that he was not afforded
equal consideration for transfer to a position outside of the "EMS."
Complainant claimed to suffer from a skin condition caused by laundry
chemicals, and claims that others have been transferred while he has not.
The formal complaint, dated August 17, 1998, provided complainant an
opportunity to "check-the-box" for the bases and issues he alleged.
Complainant raised the bases of race and reprisal. Complainant checked,
and provided dates for "harassment - July 28, 1998; suspension - September
1997; termination/removal - September 1992." Complainant also provided
that, as corrective action, he sought, inter alia, reassignment out of
the EMS, a "monetary award - promotion . . .," training in the form of
being allowed to finish the government sponsored classes, and backpay.
ANALYSIS AND FINDINGS
As an initial matter, the Commission finds that the agency improperly
defined the complaint. The agency failed to identify the basis of
reprisal, which was clearly checked on the formal complaint form.
Additionally, the agency failed to address elements of complainant's
harassment claim by ignoring several incidents - - being denied training
when his supervisor failed to provide materials until it was too late
to enroll, and being denied overtime. Complainant clearly raised
these issues in his formal complaint, by requesting relief in the form
of completion of the training classes and backpay, as well as having
raised these incidents during EEO counseling. The agency also ignored
his claim that he was not given equal consideration for transfers out
of the EMS, which, again, complainant raised in the relief section of
his formal complaint. Therefore, complainant's formal complaint should
have been defined as alleging discrimination on the bases or race and
reprisal for prior EEO activity when:
(1) Complainant was suspended for 30 days in September 1997;
Complainant was counseled about his attendance in September 1992;
Complainant was subjected to a pattern of harassment from his supervisor
including:
Being charged with eight hours AWOL on July 28, 1998;
Being refused overtime while other light-duty employees were allowed to
work overtime; and
Being denied training when his supervisor failed to send letters necessary
for complainant's application for government sponsored training classes.
Complainant was not given equal consideration for transfers out of
the EMS.
The Commission deems the agency's failure to address the matters
described above to be tantamount to a dismissal of those matter.
Complainant's submissions on appeal reveal that the matters were
addressed in counseling, and raised in complainant's formal complaint.
Accordingly, the agency's dismissal of complainant's claims concerning
training, overtime, and transfer out of the EMS is reversed.
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 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.
The agency's dismissal of claims (1) and (2) was proper. Complainant
failed to contact a counselor until almost a year after the incident
alleged in claim (1), and almost six years after the incident alleged
in claim (2). Complainant's explanation that he did not believe in
the system, despite having filed complaints in 1995 and 1997, does not
justify his untimely contact.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
he has incurred compensatory damages, and that the damages are related
to the alleged discrimination. Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den.,
EEOC Request No. 05930306 (February 1, 1993). Should complainant
prevail on this complaint, the possibility of an award of compensatory
damages exists. See Glover v. United States Postal Service, EEOC
Appeal No. 01930696 (December 9, 1993). Because complainant requested
compensatory damages, the agency should have requested that complainant
provide some objective proof of the alleged damages incurred, as well as
objective evidence linking those damages to the adverse actions at issue.
See Allen v. United States Postal Service, EEOC Request No. 05970672
(June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422
(December 3, 1993).
Although the agency canceled the AWOL charge raised in claim (3)(a),
and paid him for the leave hours, the agency failed to address whether
complainant was entitled to compensatory damages on the matter.
Accordingly, the dismissal of claim (3)(a) was improper.
CONCLUSION
Accordingly, the agency's dismissal of claims (1) and (2) is AFFIRMED.
However, the agency's dismissal of the remainder of the complaint, as
defined herein, is REVERSED, and the claims are REMANDED for further
processing.
ORDER (E1199)
The agency is ORDERED to process the remanded claims 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 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 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 (M1199)
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). 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:
January 14, 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.