01991576
11-05-1999
Phillip H. Savage, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Phillip H. Savage, )
Appellant, )
)
v. ) Appeal No. 01991576
) Agency No. EO 97 01 A
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
______________________________)
DECISION
On December 17, 1998, appellant filed a timely appeal from the agency's
November 18, 1998 final decision (FAD), which partially dismissed
appellant's March 1, 1997 formal EEO complaint for failure to state a
claim and untimely EEO Counselor contact, pursuant, respectively, to 29
C.F.R. ��1614.107(a) and .107(b), in pertinent parts. The Commission
accepts appellant's appeal pursuant to EEOC Order No. 960, as amended,
and, for the reasons set forth below, sets aside the FAD.
BACKGROUND
As a threshold matter, the Commission notes a lack of clarity in the
record, as well as an involved procedural history. We note, for example,
that it appears that appellant has filed several complaints against the
agency, none of which, apparently, has been resolved. Appellant's
complaints also appear to raise both overlapping and continuing
allegations of employment discrimination. In a recent decision, the
Commission ordered the agency to conduct a supplemental investigation to
determine whether certain allegations of appellant's had previously been
addressed by or were pending before the agency or the Commission. See
Savage v. Department of Housing and Urban Development, EEOC Appeal
No. 01986484 (August 12, 1999) (hereinafter �Savage I�). Because the
record is unclear in the present case, we will refer to the allegations
in Savage I for background only and set forth the chronology cited below.
In Savage I, the Commission noted the agency's framing of appellant's
January 12, 1998 formal EEO complaint as alleging that, for prohibited
reasons:
(1) appellant was denied a non-hostile, non-discriminatory, working
environment, e.g., proper office space, allied accommodations, secretarial
assignment, duties and responsibilities consistent with appellant's
SES classification, elements and standards consistent with the only
performed duties and responsibilities, and reassignment to the vacant
Deputy Assistant Secretary or similar SES position; and
(2) appellant's supervisor denied appellant a bonus or pay raise for
the rating period October 1, 1996 to September 30, 1997.
In Savage I, we noted the agency's acceptance of appellant's allegation
pertaining to his performance appraisal rating.
The dispute in the present case centers around two EE0 matters. In the
first matter, the agency denied that a document filed by appellant is
a formal complaint and has instead deemed it to be a request for EEO
counseling. By letter dated January 17, 1997, appellant filed with
the agency what he purports to be a formal EEO complaint (hereinafter
�Complaint 1,� or �C-1�). In C-1, appellant alleged that the agency,
through the then-agency head and his subordinates, discriminatorily took
the following actions:<1>
(1) removed him from his position as Deputy Assistant Secretary;<2>
(2) reassigned him to Detroit, Michigan, to a non-functioning position
for which he was unqualified;
(3) placed him on an �IPA� when he �pleaded� with the agency that he
needed to be �here� with his disabled daughter;
(4) withdrew him from the IPA and reassigned him to FHEO in Washington,
D.C.. as a Senior Advisor to a Deputy Assistant Secretary, a position
that lacked SES duties and responsibilities, although a White female,
also on an IPA, was permitted to continue her IPA placement;
(5) denied him a parking space for two months;
(6) denied him an official position description until appellant requested
one;
(7) denied him an official performance appraisal with appropriate elements
and standards;
(8) denied him official annual performance ratings with accompanying
bonuses and pay raises;
(9) denied him an office appropriate for an SES person; and
(10) denied him SES duties and responsibilities.
In C-1, appellant indicated he had seen a named EEO Counselor (hereinafter
�NEC�) prior to filing C-1.<3> In response to C-1, the Director of the
agency's EEO Division (�DED�), by letter dated February 3, 1997, advised
appellant that C-1 would be treated as a request for EEO counseling and
advised appellant, inter alia, that NEC was no longer �a collateral duty
counselor� and his purported request to be counseled by NEC would not
be honored.
In a February 11, 1997 letter, appellant informed DED that he had
previously been counseled by NEC but had never received an NOFI and
advised of the right to file a formal EEO complaint. Appellant denied
seeking NEC as his counselor at this time, and appears to have raised a
new allegation that his right to anonymity in the EEO process had been
violated because he was required to contact DED's office to request
counseling and that DED's office was staffed by some individuals who
were not EEO Counselors.
Appellant was subsequently provided with EEO counseling and, on
February 27, 1997, was issued a notice of the right to file a formal EEO
complaint. We note that the record contains an �Amended� EEO Counselor's
report (�AECR�) citing January 17, 1997 as the date of appellant's initial
EEO office contact, and January 21, 1997, as the date of appellant's
initial EEO Counselor contact. However, the record does not appear to
contain the underlying ECR that preceded the AECR.
By letter dated March 1, 1997, appellant filed a complaint (�C-2").
In C-2, appellant again named the then-agency head and his subordinates
as having discriminated against him in a continuing pattern. In C-2,
appellant raised the following allegations that the Commission has
renumbered and rephrased for the purposes of consistency and clarity:
(1) on January 6, 1997, appellant learned he had been nonselected for
his prior position of Deputy Assistant Secretary for Operations and
Management, FHEO, in favor of a less-qualified White female;
(2) he was denied an official performance appraisal rating and rated
�Superior� for FY 1993;
(3) he was denied a raise or bonus despite an �Outstanding� rating in
FY 1994 and 1995;
(4) he was rated �Superior� in FY 1996;<4>
(5) he was denied monetary recognition in FY 1996, despite saving the
agency over $300,000 in resolving an EEO complaint;
(6) he was assigned to the newly-created position of Senior Advisor,
but primarily performed duties at only the GS-13 level, or below, with
regard to EEO complaints filed by FHEO employees or applicants for
FHEO employment;
(7) he was assigned neither staff nor office space comparable to other
SES FHEO personnel;
(8) he has not traveled in more than 3 years, beyond one trip to
investigate a sexual harassment complaint;
(9) he was denied a budget for such items as travel, staffing, and
contracts;
(10) he was falsely accused of sending a report to the EEO Office related
to his investigation of a sexual harassment complaint and was subjected
to retaliation �because of it�;
(11) he was nonselected for the position of Deputy Assistant Secretary
for Operations and Management in FHEO; and, although never notified of
his nonselection, he became aware of his nonselection on January 6,
1997, when he returned from vacation;
(12) subsequent to his removal from his Deputy Assistant Secretary's
position in FHEO, he was denied reassignment to other SES positions
in the agency, including FHEO, e.g., Deputy Assistant Secretary for
Policy and Initiatives; Deputy Assistant Secretary for Enforcement and
Investigations; Director of the Departmental EEO Office; Deputy Director
of the Human Resources Office;
(13) all the aforesaid allegations arose from a 1994 reassignment
to the Detroit Office, without consultation, despite his daughter's
disability;<5> and
(14) he was denied the right to anonymous EEO counseling, when the EEO
Office required him to identify himself to obtain an EEO Counselor's name.
As part of the relief sought in C-2, appellant requested compensatory
damages.
By letter dated May 30, 1997, DED requested, inter alia, clarification
of appellant's allegations. In her letter, DED denied that the agency
had violated appellant's right to anonymity. Regarding appellant's
assertion that he had received EEO counseling from NEC, DED stated,
in relevant part, that �if [NEC] counseled you he did so outside the
realm of EEO counseling.�
Appellant responded by letter dated June 12, 1997, objecting, in pertinent
part, to DED's treating his complaint in ��piecemeal'� fashion and
maintaining that he was alleging ��continuing discrimination.'� The
gravamen of this letter was that the agency had been discriminating
against appellant since 1993,<6> when he was removed from his Deputy
Assistant Secretary's position and he was not reassigned to a comparable
position.
By letter dated July 25, 1997, under the letterhead of �OFFICE OF THE
SECRETARY,� and signed by DED, the agency accepted for investigation
the following allegations:
Appellant was discriminated against because of [his] color (Black),
national origin (African American), sex (male), and age (64) when: (1)
[he was] not selected for the position of Deputy Assistant Secretary
for Operations and Management, Office of Fair Housing and Equal
Opportunity. [He] learned on January 6, 1997 that [he] had not been
selected for this position; and (2) in reprisal for opposing practices
made illegal by Title VII, [he] received a �Superior' performance rating
for FY 1996 rather than �Outstanding'.[<7>]
In the July 25, 1997 letter, DED also advised appellant that it was
�not accepting for investigation the other allegations [he] raised to
demonstrate an alleged pattern and practice of discrimination because
they were untimely raised with an EEO counselor.�<8>
The record reflects that appellant subsequently requested a hearing before
an EEOC administrative judge (AJ) and consolidation of his complaints.
By letter dated November 18, 1998, the agency issued its final decision
that is the subject of the present appeal. The FAD addressed only
appellant's March 1, 1997 complaint (C-2), identifying appellant's bases
of discrimination as follows: race (Black), color (mixed), sex (male), age
(64), disability (that of his daughter), and retaliation for participating
in the EEO process and opposing a matter discriminatory under Title VII.
The FAD noted appellant's claim of continuing discrimination by
�management officials in the Office of Fair Housing and Equal Opportunity
(FHEO), and the Offices of the Secretary and General Counsel.� The FAD
identified appellant's allegations as involving the following agency
actions against him:
(1) denied him an official performance appraisal rating and gave him a
rating of �Superior� for FY 1993;
(2) denied him a raise or bonus despite an �Outstanding� rating in FY
1994 and FY 1995;
(3) issued him a �Superior� rating in FY 1996;
(4) denied him monetary recognition in FY 1996 despite his having saved
the agency more than $300,000 by settling an EEO complaint;
(5) assigned him a non-functioning and newly-created Senior Advisor's
position, which primarily performed only GS-13 or below duties related to
EEO complaints filed by FHEO employees or FHEO applicants for employment;
(6) assigned him neither staff nor office space comparable to other SES
personnel assigned to FHEO;
(7) denied him an opportunity to travel except for one trip to
investigate a sexual harassment complaint, and he was retaliated against
for that investigation;
(8) denied him a budget for such items as travel, staffing, and contracts;
(9) falsely accused him of sending a report to the EEO Office related
to his investigation of a sexual harassment complaint and, as a result,
retaliated against him;
(10) did not select him for the position of Deputy Assistant Secretary
for Operations and Management in FHEO and never notified him of his
nonselection; on January 6, 1997, he learned another individual was
selected;
(11) denied him reassignment to other positions in FHEO and the agency,
such as: Deputy Assistant Secretary for Policy and Initiatives; Deputy
Assistant Secretary for Enforcement and Investigation; Director of the
agency's EEO Office; Deputy Director of the Human Resources Office;
and other SES positions filled in the agency since his removal from his
FHEO Deputy Assistant Secretary's job;
(12) reassigned him, in 1994, without consultation, to the Detroit Office,
despite his daughter's disability;
(13) withdrew his IPA assignment abruptly, in 1995, while allowing two
other persons, not of his protected classes, to continue their non-agency
assignments;
(14) violated his right to anonymity when he was required to identify
himself before being assigned an EEO Counselor; and
(15) retaliated against him when the agency opposed settlement of a
sexual harassment complaint he had investigated.
The FAD dismissed allegations (1), (2), (4) through (9), and (11) through
(13) for untimely EEO Counselor contact, i.e., beyond the applicable
time period of 45 days as set forth at 29 C.F.R. �1614.105(a)(1). The
FAD also determined that appellant's allegations did not constitute a
continuing violation. In addition, the FAD dismissed allegation (14)
for failure to state a claim, as well as, apparently, allegation (15).
With regard to appellant's expressed dissatisfaction with the agency's
processing of his complaint, the agency referred appellant to a named
individual with responsibility for the quality of the processing of
EEO complaints, i.e., the Acting Deputy Director of Equal Employment
Opportunity (ADEO), in accordance with the Commission's Management
Directive for 29 C.F.R. Part 1614. We note that the ADEO was, in fact,
DED, although the FAD was signed by a named individual who identified
himself by the title of ADEO.
We also note that the FAD rejected appellant's assertion that he had
filed an EEO complaint on January 17, 1997, which the FAD maintained was
a request for EEO counseling. The FAD appears to have indicated that
appellant's March 1, 1997 complaint was assigned agency case number EO
97 01, although the FAD itself referenced agency case number EO 97 01 A.
Finally, we note the FAD's reference to appellant's request for a hearing
before an EEOC AJ. Specifically, we note that, on November 17, 1998, DED,
on behalf of the agency, requested the EEOC AJ to stay the proceedings as
to cases EO 97 01 and EO 98 02, under EEOC hearing numbers 100-97-7945X
and 100-98-8044X, pending the Commission's �decisions on both appeals,�
which we infer to be Savage I and Savage II.
In a November 23, 1998 letter to DED, the EEOC AJ stayed the proceedings
pending the outcome of appellant's appeals under EEOC hearing numbers
100-97-7945X, 310-98-5198X; agency case number EO- 97-01; EEOC hearing
number 100-98-8044X; agency case number EO-98-02. The EEOC AJ also advised
the agency's EEO Division to �review its responsibility to process
complaints in a timely manner and process dismissals �expeditiously,'�
in accordance with the Commission's regulations and Management Directive
for those regulations.<9>
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, appellant argues that he �became aware of facts related to his
removal from his position as Deputy Assistant Secretary for Operations
and Management [in FHEO] in late May or early June, 1995, from [a named
White male].� Appellant also avers that he initiated EEO counseling in
January 1997, when he learned of alleged racially disparate treatment in
connection with his reassignment to Detroit, notwithstanding the purported
disability of his daughter, but was not provided with a NOFI. Appellant
also argues, inter alia, that the FAD dismissed allegations in C-2,
which were allegations contained in C-1 and included in C-2 by appellant
as �background.� In addition, appellant argues that his allegations,
which are also directed against the agency's EEO Office, as well as the
agency's Office of General Counsel, set forth a pattern and practice of
discrimination against him.<10>
The agency filed no response to appellant's appeal.
ANALYSIS AND FINDINGS
The Commission finds that the agency has not adequately defined
appellant's complaint, nor has provided an adequate record in this
matter. See Smith v. U.S. Postal Service, EEOC Request No. 05921017
(April 15, 1993); Henry v. U.S. Postal Service, EEOC Request No. 05940897
(April 18, 1995); Guy v. Department of Energy, EEOC Request No. 05930703
(January 14, 1994). Specifically, the file contained an �amended� EEO
Counselor's report without an underlying EEO report. In addition, the
complaint file's transmittal letter, signed by DED, made reference to
a list of transmitted documents, and an EEO Counselor's report without
indicating that the report had been amended. In addition, the transmittal
letter references the present case as EO 97 01 A while indicating that
the Commission �has accepted on appeal, [a[ppellant's allegation that
the [agency] failed to accept for investigation all the issues raised
in his EEO complaint, case number EO 97 01. The appeal case number is
100-97-945X [sic].� However, as we have stated above, the Commission
vacated a prior FAD, in Savage I, supra, for an inadequate record under
agency case number EO 98 02A. Further, DED's May 30, 1997 letter, which
we cite above, to appellant, references the instant case as EO 97 01.
Further, as the EEOC AJ noted, the FAD disposed of C-1 without expressly
dismissing it. We find the record inadequate as to whether appellant's
purported contact with NEC prior to appellant's filing C-1 constituted EEO
contact, in accordance with 29 C.F.R. �1614.105(a). We note that NEC's
purported affidavit is silent regarding what specific issues appellant
raised with NEC. Additionally, we find that, in C-1, appellant raised
the issue of his removal from the position of Deputy Assistant Secretary.
The record is not clear whether that position is in the nature of a
political appointment and whether appellant's subsequent assignment to a
Senior Advisor's position is tantamount to a downgrade that falls within
the jurisdiction of the Merit Systems Protection Board (MSPB), as part
of a mixed case complaint or mixed case appeal. See 29 C.F.R. �1614.302.
We further find that the overlapping nature of appellant's complaints and
allegations of ongoing discrimination, as well as an inadequate record,
including but not limited to a lack of dates concerning a number of
appellant's nonselections, hampers the Commission's disposition of
appellant's appeal. The record is unclear, for example, as to which
issues are presented as �live� allegations and which issues are presented
as background evidence in support of live allegations. In addition, the
Commission finds some of appellant's allegations to be vague. It is not
clear, for example, whether appellant is alleging associational disability
discrimination<11> with regard to his daughter's unspecified disability
and appellant's purported reassignment, or discrimination based on race,
or both. In addition, appellant's allusion to the withdrawal of his
�IPA� assignment is also ambiguous. Equally unclear is appellant's
allegation concerning the agency's purported retaliation against him
for his alleged investigation of a sexual harassment complaint.
Therefore, the Commission finds the agency has not met its burden
of presenting sufficient evidence for a timeliness determination.
See Guy v. Department of Energy, supra. Accordingly, at this time,
the Commission will not render a decision as to whether appellant's
allegations constitute a continuing violation.
Moreover, the inadequacy of the record in the present case also
precludes the Commission from reaching a determination as to whether
appellant's allegations, viewed in their totality, constitute a claim
of harassment and whether the agency has improperly fragmented that
claim in piecemeal fashion. See Drake v. Department of the Air Force,
EEOC Request No. 05970689 (March 29, 1999); Tilden v. Department of the
Army, EEOC Appeal No. 01976352 (July 2, 1998); Meaney v. Department of
the Treasury, EEOC Request No. 05940169 (November 3, 1994). Cf. the
Commission's Guidance on Investigating, Analyzing Retaliation Claims,
Compliance Manual Section 8, Directives Transmittal No. 915.003 (May
20, 1998).
Finally, the Commission notes the appearance of a conflict of interest in
the processing of appellant's complaint in this matter. The Commission's
Management Directive for 29 C.F.R. Part 1614, EEO MD-110 (October 22,
1992) clearly cautions agencies that they must avoid even the appearance
of a conflict of interest in their EEO counseling and representational
functions, as well as to the need to maintain neutrality in the EEO
component. See, e.g., EEO MD-110, Ch. 1, �IV (EEO personnel �cannot serve
as representatives for complainants or for agencies in connection with
the processing of discrimination complaints�). For all the foregoing
reasons, therefore, the Commission has decided that the FAD in this
matter must be vacated.
CONCLUSION
Having reviewed the entire record, the arguments on appeal including
those arguments not expressly addressed herein,<12> and for the foregoing
reasons, the Commission hereby VACATES the FAD, and REMANDS appellant's
complaint for further processing consistent with the Commission's decision
and applicable regulations. The parties are advised that the Commission's
decision is not a decision on the merits of appellant's complaint.
The agency shall comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to ensure the completion of the following actions:
1. The agency shall refer appellant to EEO counseling for a clarification
of the allegations in his March 1, 1997 EEO complaint, including but not
limited to his allegations concerning the agency's alleged retaliation
against him in connection with his purported investigation of a sexual
harassment complaint. Appellant may not add new allegations to his March
1, 1997 EEO complaint and shall not be required to refile his March 1,
1997 complaint.
2. The EEO Counselor/Investigator (hereinafter �C/I�) shall obtain, and
appellant shall so provide, the particulars of appellant's allegations
which shall include, but not be limited to: relevant dates for all alleged
discriminatory actions; identification of all events complained of (e.g.,
specific nonselections); identification by name and position for each
individual who allegedly discriminated against appellant. The Counselor
shall also obtain from appellant an explanation as to when and how he
first became aware of the specific alleged acts of discrimination (e.g.,
when he received his performance appraisals and when he first learned
of each nonselection). In the event any of appellant's allegations is
untimely, the Counselor shall inquire of appellant as to the reason for
untimely EEO Counselor contact. All agency abbreviations and terms of
art shall be identified and fully explained (e.g., �IPA�). Appellant and
his representative, if any, shall cooperate fully with the C/I's inquiry
in this matter.
3. The C/I shall also obtain an explanation from appellant regarding
the nature of his daughter's disability and any and all bases of alleged
discrimination in connection with his daughter's disability and the
alleged discriminatory reassignment.
4. The C/I shall obtain from appellant an explanation regarding
what issues he is raising as �live� allegations, distinguishing those
allegations from background allegations appellant has intended to support
�live� allegations in his March 1, 1997 EEO complaint.
5. The C/I shall also gather evidence, with appellant's cooperation
where reasonably necessary to effect the Commission's Order in this
matter, regarding appellant's January 17, 1997 purported EEO complaint
and the precomplaint counseling he purportedly received from NEC. In this
regard, the C/I shall obtain statements, under oath or affirmation, from
appellant and other agency employees, with first-hand knowledge of the
alleged precomplaint counseling, concerning the issues discussed; bases
of discrimination alleged; dates the precomplaint counseling purportedly
occurred; the qualifications, availability, and authority of NEC to
conduct EEO counseling; and any and all information existing at the
time of the counseling, informing agency employees of their EEO rights
and duties in connection with initiating counseling, and the identities
of persons, including NEC, whom agency employees could contact to begin
the EEO process. In this regard, the C/I shall obtain statements under
oath or affirmation from any and all persons with first-hand knowledge
of the manner in which an agency employee could initiate EEO counseling,
between the time appellant purportedly spoke with NEC in 1995, up to
and including the filing of appellant's March 1, 1997 EEO complaint.
6. In the event appellant is alleging he was improperly removed as
a Deputy Assistant Secretary and reassigned to the position of Senior
Advisor, the C/I shall inquire into the nature of appellant's original
appointment, and subsequent removal, as a Deputy Assistant Secretary,
including the names and positions of the individuals who, respectively,
appointed him and then removed him. The C/I shall also inquire into
whether that removal may be processed as a mixed case complaint or mixed
case appeal in accordance with 29 C.F.R. �1614.302, and advise appellant
of his right of election accordingly.
7. Subsequent to meeting with appellant and the completion of C/I's
investigation, C/I shall issue a supplemental report of investigation
to appellant and his representative, if any, pertaining to items (1)
through (6) in this Order. The supplemental report shall include all
relevant documentation.
8. Appellant and the EEO Counselor shall agree on all the bases and
issues in appellant's March 1, 1997 complaint. In the event of such
agreement, and in the event the agency accepts all of appellant's
allegations for investigation, the agency shall issue to appellant,
and his representative if any, a letter of acceptance.
9. If agreement cannot be reached on all the bases and issues in
appellant's March 1, 1997 EEO complaint, or if the agency dismisses
that complaint in whole or in part, the agency shall issue to appellant
and his representative, if any, a new final agency decision with appeal
rights to the Commission, defining the bases and issues in appellant's
March 1, 1997 EEO complaint. The new final decision shall define all
of appellant's appellant's allegations and, with regard to dismissed
allegations, shall specify the legal grounds, evidence, and documentation
relied on in dismissing those allegations. The new final agency decision
shall also conduct an analysis, with regard to allegations dismissed on
timeliness or failure to state a claim grounds, of appellant's March 1,
1997 complaint within the context of the continuing violation theory, as
well as pattern discrimination. The agency shall not dismiss allegations
de facto by omitting those allegations from its new final agency decision.
10. The new final decision shall also address the viability of
appellant's purported January 17, 1997 EEO complaint and the allegations
contained therein.
11. The new final agency decision shall clarify and distinguish the
agency case numbers for all complaints pending before the agency or
Commission as referenced in the instant Commission decision.
12. The agency shall consolidate, in accordance with 29 C.F.R. �1614.606,
all of appellant's EEO complaints pending before it, unless the agency
can demonstrate why it is unable to do so; and shall request assignment of
an EEOC AJ, unless appellant requests a final decision without a hearing.
13. The agency shall ensure that all Ordered actions, including
appellant's meeting with C/I, the supplemental investigation, report of
supplemental investigation, and issuance of the letter of acceptance or
new final agency decision, are concluded within ninety (90) calendar days
of the date the Commission's decision becomes final. True copies of all
Ordered documents, including the report of supplemental investigation,
and letter of acceptance or new final agency decision, with any and all
supporting documentation, must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director Office of Federal
Operations
1In his purported complaint of January 17, 1997, appellant provided no
relevant dates of occurrence.
2It appears that appellant is referring to the position of Deputy
Assistant Secretary for Operations and Management in the Office of Fair
Housing and Equal Opportunity (FHEO).
3We note that, on appeal, appellant provided what purports to be an
�affidavit� from NEC asserting that appellant contacted NEC on June 15,
1995, in NEC's then-capacity as an EEO Counselor. According to NEC, he
counseled appellant from June 15, 1995, to August 1996, without providing
a Notice of Final Interview (NOFI) to appellant to permit appellant's
supervisor at the time to resolve informally appellant's claims. In his
�affidavit,� however, NEC does not identify any of the issues appellant
purportedly raised with him. Moreover, the record does not contain an
EEO Counselor's report (ECR) by NEC concerning the purported counseling.
4It appears, from a pre-C-2 communication to his EEO Counselor,
that appellant was claiming that he should have received a rating of
�Outstanding.� However, we also note appellant's assertion that he
was �[d]enied a performance rating for FY 1996,� and, consequently,
was allegedly denied either a bonus or salary increase.
5Appellant also appears to have raised a claim under the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq., alleging that
he was discriminated against based on his daughter's disability
(unspecified). However, we note that appellant appears to be alleging
that he was treated differently from a White employee. As reflected
in his appeal and the purported �affidavit� of the White employee who
allegedly had a reassignment rescinded because he was the care giver
for his elderly and disabled parents.
6In other EEO correspondence, appellant alleged that the agency initially
began discriminating against him when it reassigned him in 1994.
7With regard to the referenced bases of discrimination, with the exception
of age and disability, see Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. With regard to the protected class
of age, see the Age Discrimination in Employment Act (ADEA) of 1967,
as amended, 29 U.S.C. �621 et seq.
8 Although no appeal rights to the Commission were provided, it appears
appellant attempted to appeal the agency's July 25, 1997 letter by
correspondence received by the Commission on August 6, 1997, and docketed
as EEOC Appeal No. 01976074, under agency case number EO-97-01 (�Savage
II�). That matter is currently pending.
9In this regard, we note that the EEOC AJ attached an Order, to a
November 20, 1998 letter to the parties, applying sanctions to the agency,
directing the agency to �pay for the costs of the court reporter for the
deposition of [a named deponent]; the cost of [appellant's] counsel's time
preparing for the deposition to the extent that counsel's preparation
related to the uninvestigated issues; and half [appellant's] counsel's
time for deposing [the named deponent] as to the uninvestigated issues.�
By way of background, we also note that the EEOC AJ had issued an earlier
Order, dated December 8, 1997, under EEOC hearing number 100-97-7945X
and agency case number EO-97-01, declaring that the allegations in C-1
and C-2 would be heard and adjudicated because the agency had �never
expressly dismissed� either complaint in whole or in part.
10Appellant also cites an additional complaint of his against the agency
under agency case number EO 98 03. That matter, however, is not before us
at this time and, consequently, will not be addressed in the Commission's
present decision.
11See 29 C.F.R. �1630.8.
12On appeal, appellant referenced numerous Commission decisions. However,
he provided no citations for any of them. In the event appellant,
on remand, again references decisions of the Commission, he or his
representative, as the case may be, shall provide complete citations
with dates of issuance. Appellant shall also advise the agency and the
Commission if he is, in fact, represented in the present case.