01995532
04-04-2001
Patrick Hyde, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Patrick Hyde v. Department of the Treasury
01995532
04-04-01
.
Patrick Hyde,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01995532
Agency No. 99-2218T
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning 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. The final agency decision was dated May 14,
1999, and received by complainant on May 17, 1999. Complainant received
notification of his appeal rights on June 3, 1999. The appeal was
postmarked on June 30, 1999. Accordingly, the appeal is timely (see 29
C.F.R. � 1614.402(a)), and is accepted in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Complainant, an employee of the U.S. Customs Service, filed a formal
complaint on April 6, 1999, alleging discrimination on the bases of race
(Black), color (black), national origin (West Indian) and reprisal (prior
EEO activity) when in January 1999, he was demoted from his temporary
position of Process Specialist, GS-12, to that of Inspection Clerk, GS-5.
He first contacted an EEO Counselor on January 29, 1999. In addition to
this claim, complainant attached to his complaint a 35-page �Statement of
Facts� which was meant to summarize the 316 attachments to his complaint
which documented agency actions that began in August 1995 relating to
an on-the-job injury suffered by complainant. Complainant claimed that
those agency actions from 1995 through the date of his complaint were
racially motivated, and were designed to have adverse effects on his
�life and career.�
In its final agency decision (FAD), the agency characterized complainant's
complaint as claiming that he had been discriminated against when he
received unprofessional treatment from his managers while recovering from
a Workers' Compensation on-the-job injury in 1995, that he was transferred
from a light duty assignment to the airport where there were no light
duty assignments in June 1996, and that he was demoted in April 1998.
It stated that the specific allegations were that management delayed
assisting him with medical care on August 21, 1995; failed to authorize
him to seek medical care from a neurologist during August and September
1995; denied him Leave Without Pay (LWOP) on October 1, 1996; charged
him with Absence Without Leave (AWOL) from September 12-26, 1996 and July
7-19, 1997; continuously denied him light duty from approximately October
1995 through July 1997; assigned him to work at the Miami International
Airport on June 9, 1997; and demoted him from the position of Customs
Inspector, GS-1890-11 to the lower grade of Customs Inspection Clerk,
GS-1897-5, on March 15, 1998. The agency dismissed the complaint for
untimely contact with an EEO Counselor, finding that complainant's January
29, 1999 contact was not within 45 days of any of the incidents listed
by the agency as comprising complainant's complaint.
In a May 10, 1999, response to the agency's inquiry before it issued the
FAD as to why complainant contacted an EEO Counselor beyond the 45 day
period, complainant had stated that during the time period in question
he had been incapacitated by the head injury he suffered on the job
and was therefore incapable of understanding that he had been a victim
of discrimination. He explained that it was not until January 1999 when
he was compiling all of the documents attached to his complaint in order
to aid an internal investigation into his allegations of abuse of power,
racism and unprofessionalism that he realized that he had actually been
the victim of racism. He also stated in this response to the agency that
due to speaking out in January 1999 he was �banished back to the field.�
The agency found in its FAD that even had complainant been incapacitated
during part of the time period from 1995 through 1998, by his own
admission in his response, complainant stated that his �brain normalized
in January of 1998" and that therefore, it would have been reasonable
to expect that he would have sought EEO counseling at that time had
he believed that the agency's actions were discriminatory. It also
found that complainant stated that it was not until January 1999 that he
suspected discrimination because that was when he systematically put all
of his paperwork in order and realized that the agency's actions might
have been discriminatory. The agency found that complainant should
have had reasonable suspicion before January 1999 because he had been
keeping detailed accounts of incidents and records as early as 1995,
and that he had engaged in numerous actions and efforts between 1995 and
1999 in the pursuit of his Workers' Compensation claim, and in protest
of other agency actions. The agency further found that complainant's
complaint did not meet the criteria of a continuing violation and that
the incidents he listed were each sufficiently distinct enough to trigger
the running of the limitations period.
This appeal followed. Complainant argued that it was not until he
had catalogued all of his paperwork in January 1999 to aid in the
investigation of his charges of agency corruption and abuse of power
that he discovered that he was a victim of racism. He reiterated his
contention that he had been mentally incapacitated until May 1998, when
he was finally taken off all of his medications, and it was at that time
that the agency informed him that he had permanently been demoted to the
GS-5 Inspection Clerk position. He was, however, temporarily promoted to
the GS-12 Process Specialist position in June 1998, for an appointment to
last one year, until June 1999, but he states that he was returned back
to the field on January 15, 1999, or as he characterized it in his May
10, 1999 letter to the agency, that he �was banished back to the field.�
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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.
Pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2), an agency shall
dismiss a complaint that does not comply with this time limitation.
We find that complainant adequately alleged that he had been subjected
to discrimination within the 45-day period preceding his EEO Counselor
contact. A careful examination of complainant's 35 page summary of
events reveals that while he was demoted upon his return to full duty
from Workers' Compensation light duty assignments from his GS-11 Senior
Inspector position to a GS-5 Customs Clerk on March 15, 1998, he was also
temporarily promoted to a GS-12 Process Specialist position in June 1998.
That temporary assignment was to last one year and complainant was to be
returned to his GS-5 position at the end of that temporary assignment.
By ending the temporary assignment six months prematurely, and returning
complainant �to the field� we find that he has adequately alleged that
he was subjected to a discriminatory event within the 45-day period,
and the agency's dismissal of this claim for untimeliness was improper.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims within a complaint when
the complainant alleged a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (December 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a
common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC
Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department of
the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, complainant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or
were more in the nature of isolated employment decisions; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
As to the other acts contained in complainant's voluminous complaint,
covering a nearly four year span of time, we find that they do not
constitute a continuing violation such that they should be considered to
have been brought to the attention of the EEO Counselor in a timely
manner. Complainant's complaint fails to qualify as a continuing
violation because of the number and variety of different agency officials
who were alleged to have been involved in the many decisions relating
to the actions that were taken regarding his on-the-job injury, his
Workers' Compensation claim, his light duty assignments, his return to
duty at the GS-5 level, and his being returned to the field from his
temporary promotion to the GS-12 position. We find therefore, that the
agency properly dismissed the remainder of complainant's contentions
for untimeliness.
We also find that the agency properly found that complainant was no
longer incapacitated as of, at the latest, May 1998, as that was when
he was no longer on any medications for his injury and was returned to
full duty. We have consistently held, in cases involving physical or
mental health difficulties, that an extension is warranted only where
an individual is so incapacitated by his condition that he is unable
to meet the regulatory time limits. See Davis v. United States Postal
Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United
States Postal Service, EEOC Request No. 05920700 (October 29, 1992).
Even if he had been incapacitated between 1995 and May 1998, the period
of incapacitation would have ended at this point, rendering complainant
able to contact an EEO Counselor regarding the actions the agency had
taken within 45 days of that time.
CONCLUSION
Accordingly, the decision of the agency is partially AFFIRMED, and is
partially REVERSED and REMANDED for further processing in accordance
with this decision and the proper regulations.
ORDER
The agency is ordered to process the remanded claim, that complainant
was discriminated against when in January of 1999 he was demoted from
his temporary, one-year GS-12 position and sent back to the field, in
accordance with 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 a
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 (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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___04-04-01_______________
Date