01997037
02-09-2001
Otis D. Washington, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Otis D. Washington v. Department of the Army
01997037
02-09-01
.
Otis D. Washington,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01997037
DECISION
INTRODUCTION
Complainant timely filed an appeal with this Commission from the final
agency decision. This case pertains 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. Upon review,
the Commission finds that the issue of complainant's timeliness as to
EEO Counselor contact must be remanded for additional information in
accordance with this decision.<1>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to seek EEO counseling
in a timely manner.
BACKGROUND
Complainant filed a formal complaint on January 29, 1999, alleging that
he was discriminated against on the bases of his race (African-American)
and color (black) when:
1) the agency failed to extend his overseas tour of duty, while making
extensions for three white male supervisors, one white female supervisor
and one Asian-American female supervisor, all of whom complainant believed
to be similarly situated to himself; and
2) agency officials non-selected him for Computer Specialist positions
which were general schedule classifications below his grade level.
On December 27, 1997, complainant left agency employment. Complainant
made his first attempt to contact an EEO Counselor on May 26, 1998;
however, despite complainant's correspondence being sent certified,
return receipt mail and being signed for by an individual at the EEO
office in Washington, D.C., complainant was not contacted by a Counselor.
On October 5, 1998, complainant resubmitted his informal complaint
and was contacted on November 27, 1998 for his initial interview.
Complainant filed his formal complaint on January 29, 1999. In the
first FAD dated March 1, 1999, the agency dismissed the complaint on the
grounds that complainant's initial, recorded EEO contact of October
5, 1998, was beyond the applicable time period of 45 days.<2> See 29
C.F.R. � 1614.105(a). On appeal, complainant indicated that he had
initiated contact on May 26, 1998 by certified, return receipt mail.
After careful review of complainant's record indicated that he had in
fact contacted the EEO office on May 26, 1998, the agency rescinded its
decision on April 1, 1999.
The second FAD again dismissed complainant's formal complaint for
failure to contact an EEO Counselor in a timely manner. See 29 C.F.R. �
1614.105(a). The agency cited the following dates and events: denial
of overseas extension on July 31, 1996; non-selection for the position
of Computer Specialist, GS 334-5/7/9, Merit Promotion Announcement
#Z-161-97-C on/around June 16, 1997; non-selection for the position
of Computer Specialist GS 334-5/7/9, Merit Promotion Announcement
#Z-161-97-C on/around August 8, 1997; and non-selection for the position
of Computer Specialist, GS 334-5 on/around October 1997. On appeal,
complainant asserts that he �was treated unfairly by the Commander of
the 78th Signal Battalion at Camp Zama, Japan on May 10, 1998.�<3>
Complainant further argues that, according to two responsible management
officials of the 78th Signal Battalion, three white male supervisors,
one white female supervisor and one Asian-American female supervisor were
granted overseas extensions even though all such supervisors were told
that �no one would be extended beyond the five year limitations for any
reason.�<4> In response to complainant's assertions, the agency argues
that complainant was aware of his non-extension of overseas tour of duty
as of July 31, 1996, when he signed an acknowledgment stating:
I understand that my organization has not approved a renewal/extension
of my Foreign Overseas Tour which will expire on Dec. 96..[sic]
Furthermore, the agency argues that the three incidents of non-selection,
whether considered as three separate charges or as a single charge, failed
to adhere to the timely notice requirement of 29 C.F.R. � 1614.105(a).
The agency fails to address any events which may have occurred on May 10,
1998 or the alleged extension of the five supervisors.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss a
complaint or a portion of a complaint which fails to comply with the time
limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved person
is required to initiate contact with an EEO counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action. See
29 C.F.R. � 1614.105(a)(1). EEOC Regulations further provide that the
agency or the Commission shall extend the time limits when the individual
shows that he or she was not notified of the time limits and was not
otherwise aware of them, that he or she did not know and reasonably
should not have known that the discriminatory matter or personnel
action occurred, that despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting the Counselor
within the time limits, or for other reasons considered sufficient by
the agency or the Commission. See 29 C.F.R. � 1614.105(a)(2).
In the instant case, complainant argues that a continuing violation
has been established because one of the acts of which he complained was
timely brought to the attention of the EEO counselor and the other three
non-selections involved the same kind of acts by the same supervisors.
The Commission notes, however, that no specific claim is identified
for the date of May 10, 1998, and no specific date is identified for
complainant's discovery that the five supervisors were extended. The
Commission finds that a determination of the timeliness of complainant's
EEO Counselor contact cannot be made based on the present record.
Consequently, this case shall be remanded for additional information to be
supplied by the agency in accordance with the Order contained herein.
Furthermore, the Commission finds the agency's processing of complainant's
complaint to be improper. The author of both the first and second FADs
was the agency's EEO Manager, who also counseled complainant during
part of the EEO process. The EEO Manager's actions were inconsistent
with the requirement that EEO Counselors be neutral and impartial, so
as not to jeopardize the integrity and credibility of the EEO program.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO-MD-110), as revised, November 9, 1999, Ch. 2. � III.
CONCLUSION
For the foregoing reasons, the agency's decision concerning complainant's
complaint is VACATED, and we REMAND the complaint for further processing
in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
1) Conduct a supplemental investigation regarding complainant's
non-extension of his overseas tour of duty. Specifically, the agency
shall:
a) request from complainant an affidavit explaining specifically when
and how he learned that the five supervisors he cited as comparatives had
their tours extended after being told that no tours were to be extended;
b) request from complainant an explanation of what happened on May 10,
1998; and,
c) provide an affidavit from an appropriate, knowledgeable official
explaining the circumstances surrounding the alleged continued extensions
of the tours of the five supervisors named by complainant.
2) Thereafter, the agency shall make a determination regarding the
timeliness of complainant's EEO contact with regard to claim (1).
The agency shall also address the continuing violation, as to claims
(2)-(4); and
3) Within sixty (60) calendar days of the date this decision becomes
final, the agency shall issue a new final agency decision, addressing
all of the claims raised by complainant, or a notice of processing.
A copy of the agency's final decision dismissing his complaint or a copy
of the notice informing complainant that his complaint has been accepted
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 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
(R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___02-09-01_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The EEO Manager, who had been corresponding with complainant throughout
the investigation, rendered the first and second FADs.
3Complainant fails to state what occurred on May 10, 1998 to cause him
to believe that he was treated unfairly. The Commission notes that
two dates appear in the record as to the alleged discriminatory event:
April 20, 1998 and May 10, 1998. May 10, 1998 appears most consistently;
however, even if the event occurred on April 20, 1998, complainant would
be timely as to his contact with the EEO Counselor.
4According to complainant, the five supervisors at issue were all
similarly situated to himself.