0120073134
09-26-2007
Phillip Martin, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Phillip Martin,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 0120073134
Agency No. DeCA-00039-2007
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated May 30, 2007, dismissing his formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The record reflects that complainant initiated EEO contact and that informal efforts to resolve his concerns were unsuccessful.
On March 7, 2007, complainant filed a formal complaint. Therein, complainant claimed that he was subjected to discrimination on the bases of race, sex, national origin, religion, color, disability, and in reprisal for prior EEO activity when:
a. on July 24, 2006, he was notified his position as Sales Store Checker, GS-2091-03 (part-time) was being abolished by a reduction-in-force (RIF), and he would be reassigned to Store Associate, GS-1101-03 (full performance level GS-4); and
b. on August 1, 2006, he accepted the position of Store Associate, GS-1101-03 under duress of termination while he was on extended sick leave.
In its May 30, 2007 final decision, the agency dismissed complainant's formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The agency determined that complainant's initial EEO Counselor contact was on November 16, 2006, which it found to be beyond the 45-day limitation period.
On appeal, complainant, through his attorney, contends that his EEO contact was timely. Complainant further contends that on November 12, 2004, complainant filed a separate complaint but received no response from the agency. Specifically, complainant argues that on September 20, 2006, his attorney sent a letter to the agency inquiring about the status of a separate complaint not at issue herein. In the September 20, 2006 letter, complainant's attorney indicated her intent in regard to "filing a new reprisal complaint for the Reduction-in-Force-Notice of Reassignment, effective October 1, 2006." Complainant argues that complainant's RIF "was not effective until October 1, 2006. I filed a reprisal complaint for this action on September 20, 2006."1 The attorney states that on October 6, 2006, the agency acknowledged receipt of the September 20, 2006 letter; and "in that same letter the EEO advised [complainant] to contact the Honolulu EEO office - - which had not responded to our previous written attempts to inquire about the status of [complainant's] first discrimination complaint." The attorney argues "in light of the fact that EEO acknowledged in writing that it received [complainant's] reprisal complaint filed by me on September 20, 2006, it can hardly be untimely as it was dated before the date the adverse action took place 'effective October 1, 2006.'"
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 Commission notes that in its final decision, the agency construed the initial EEO contact date as November 16, 2006. The Commission notes, however, that the letter from complainant's attorney, referenced herein, was dated September 20, 2006 should be construed as complainant's initial date of EEO Counselor contact for purpose of timeliness. In her September 20, 2006 letter, the attorney stated "this letter constitutes a new EEO complaint for retaliation/reprisal against [Complainant] for filing his initial EEO complaint on January 19, 2005. The agency retaliated against [complainant] as follows: 1. 7/24/06 Reduction-in-force-Notice of Reassignment effective 10/1/06. . . ; 2. 9/1/06 Acceptance/Declination form. . .." The attorney further stated although complainant's reassignment "has not taken effect yet, thus [complainant] is within the EEO 45-day reporting period."
With regard to claim (a), we concluded that the agency improperly dismissed this matter on the grounds of untimely EEO Counselor contact. The record contains complainant's "Reduction-in-Force-Notice of Reassignment" dated July 24, 2006. Therein, complainant was notified that his reassignment to the position of Store Associate, GS-1101-03 would be effective October 1, 2006. The record further reflects that complainant's initial EEO contact of September 20, 2006 actually preceded the effective date of the personnel action identified in claim (a). Moreover, with regard to claim (b), the Commission determines that because this matter is related to the personnel action identified in claim (a), as discussed above, it is also deemed timely raised with an EEO Counselor.
Accordingly, the agency's final decision dismissing complainant's complaint is REVERSED. The complaint is hereby REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with 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 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 (K0501)
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) (1994 & Supp. IV 1999). 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 (M0701)
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
September 26, 2007
__________________
Date
1 Complainant's attorney inadvertently identified the date of the filing of the instant complaint as September 20, 2007 instead of September 20, 2006.
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0120073134
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073134