Rickey D. Brown, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 18, 2000
05970558 (E.E.O.C. Sep. 18, 2000)

05970558

09-18-2000

Rickey D. Brown, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Rickey D. Brown v. Department of the Army

05970558

September 18, 2000

.

Rickey D. Brown,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Request No. 05970558

Appeal No. 01956647

Agency No. T-0735-AK0A-06-95-RO

DECISION ON REQUEST TO RECONSIDER

On March 1, 1997, Rickey D. Brown (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Ricky D. Brown v. Togo D. West, Jr.,

Secretary, Department of the Army (National Guard Bureau), EEOC Appeal

No. 01956647 (February 21, 1997).<0> A timely cross request was received

from the agency on March 25, 1997. <2> EEOC Regulations provide

that the Commission may, in its discretion, reconsider any previous

Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.405(b)).For the reasons set

forth herein, it is the decision of the Commission to deny the agency's

request for reconsideration, to grant the complainant's request for

reconsideration, and to reconsider a portion of the previous decision

on its own motion.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

remanded complainant's complaint for a determination as to whether it

should be accepted under a continuing violation theory.

BACKGROUND

Complainant initiated EEO counseling on May 11, 1995, and thereafter

filed a formal complaint in July 1995 in which he alleged discrimination

and harassment based on his race (Black) with regard to numerous agency

actions. These included a delay in the completion of a particular report

of investigation and alleged discrimination in the completion of a

second 15-6 investigation into incidents of racial harassment in the work

environment<3>; alleged agency delay, mishandling, and misrepresentation

of his OWCP claim; receipt of a February 1994 absence without leave

(AWOL) in his civil service capacity when he was on medical leave in

his military capacity; and several incidents of racial epithets and race

related threats made in the work environment.<4>

In a final decision dated August 9, 1995, the agency dismissed all

complainant's allegations for various reasons, including failure to

state a claim and for not having been raised with the EEO Counselor.

After complainant filed his appeal, the agency issued a revised final

decision dated February 28, 1996, in which it again dismissed all issues,

but for different reasons. Some issues were dismissed for being both

moot and untimely; other issues were dismissed as untimely; and still

other issues were also dismissed as not having been raised with the EEO

Counselor.

The prior decision, which treated the second final decision (FAD) as

controlling, initially noted that, although complainant had alleged a

continuing violation, the agency had not addressed that question prior

to dismissing most of the issues as untimely. For that reason, the

decision, in accordance with Guy v. Department of Energy, EEOC Request

No. 05930703 (January 4, 1994), remanded complainant's complaint for a

determination as to whether he had established a continuing violation.

The decision also reversed the dismissal of two issues for mootness,

noting that, although complainant had asked for compensatory damages

in his complaint, the agency had not addressed his entitlement to

such damages prior to dismissing those issues as moot. Finally, the

decision reversed the dismissal of several other issues, finding that,

although they may not have been raised with the EEO Counselor, they were

"like or related" to issues that had been raised with the Counselor.

In support of his request to reconsider, complainant argues that the

agency should be required to investigate the hazing incident during

which he was apparently tied up in a chair and gagged by co-workers whom

complainant asserts are members of the KKK. The record reveals that,

although this allegation was raised with the EEO Counselor, complainant

did not include it in his formal complaint.

The agency, in its cross request, argues that it was error for the prior

decision to have ordered a supplemental investigation on the question

of continuing violation. Specifically, the agency states that, at the

time it issued its final decision, it had already determined that such

a violation did not exist.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. �1614.405(b) is met.

In his request for reconsideration, complainant asserts that the agency

should be required to process the hazing incident. While complainant did

not specifically refer back to this incident in his formal complaint, we

are persuaded by the fact that he raised it during EEO counseling and from

the tenor of his overall allegation of a pattern of racial harassment by

the agency, that he intended to include this incident therein. Therefore,

we will grant complainant's request for reconsideration and will consider

this incident as contained within his overall harassment claim.

We find, however, that the agency's request for reconsideration should

be denied. Although the agency says it determined that a continuing

violation did not exist, the FAD did not address that question. In this

regard, we have previously held that, where a complainant has alleged a

continuing violation and the agency's final decision fails to address that

question prior to dismissing the complaint as untimely, the complaint

"must be remanded for consideration of this question and issuance of

a new final agency decision making a specific determination under the

continuing violation theory." Williams v. Department of Defense, EEOC

Request No. 05920506 (August 25, 1992). Therefore, we find that it was

proper for the prior decision to remand the complaint for a supplemental

investigation. At this point in the processing of the case, however,

the Commission deems it more expedient to reconsider the prior decision

on its own motion and address whether complainant has established a

continuing violation.

The Commission has held that the 45-day time requirement for initiating

EEO counseling can be waived as to certain allegations within a complaint

when the complainant alleges 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 McGivern v. U.S. Postal Service,

EEOC Request No. 05901150 (December 28, 1990).

Based on our review of the record, we find that complainant has,

for several years and in different forums, alleged that he has been

subjected to an overriding pattern of racial harassment. Specifically,

complainant has alleged that on separate occasions, he was bound to a

chair and gagged, and later tied to a metal grate by KKK members. He

asserts that he was repeatedly subjected to racially offensive

language, and was threatened by white supremacists. We further find that

complainant's allegations concerning the agency's alleged misfeasance in

its investigations of these racially harassing incidents, its alleged

attempts to thwart his claim for OWCP benefits and the problems he

encountered in utilizing his civilian leave as a result of injury caused

by the incidents are included in this overall harassment claim.

The agency's earlier fragmentation of complainant's claim herein

by separately rejecting each incident alleged for varying reasons,

represents an erroneous piecemeal method for addressing the overriding

harassment allegation presented herein. Since complainant contacted

an EEO Counselor in March 1995, within 45 days of his termination and

while the problems regarding the agency's internal investigation of his

harassment claim were ongoing, one or more of the incidents he alleged

were timely raised. Because we find that complainant's allegations

concerning physical and verbal racial harassment, agency handling of

internal investigations of such incidents, and consequent injury related

claims culminating in complainant's separation from agency employment are

interrelated elements of an overriding harassment claim, the Commission

holds that complainant has established a continuing violation. The agency

should fully investigate all aspects of this claim on remand.<5>

CONCLUSION

After a review of both parties' requests for reconsideration, the

previous decision, and the entire record, the Commission finds that the

agency's request fails to meet the criteria of 29 C.F.R. �1614.405(b),

but grants the complainant's request for reconsideration and reconsiders

other aspects of the previous decision on its own motion. The decision

in EEOC Appeal No. 01956647 (February 21, 1997) remains the Commission's

final decision, except as MODIFIED herein. There is no further right of

administrative appeal on the decision of the Commission on this Request

for Reconsideration.

ORDER (E0400)

The agency is ordered to process complainant's claim of a pattern

of racial harassment, beginning with the 1991 hazing incident and

culminating in his May 1995 termination as defined above 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.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

September 18, 2000

__________________

Date

01 In February 1997, complainant submitted a number of documents

related to his case that were docketed as EEOC Appeal No. 01973146.

Because complainant had not, in fact, ever filed a second complaint

with the agency, that case was administratively closed and the submitted

documents added to the record in this case. This documentation includes

a letter written to the Director of the Commission's Office of Federal

Operations in which complainant asserts that the agency improperly

removed him as of May 17, 1995 from his job based on illnesses caused by

the severe racial harassment involved herein. He requests reinstatement.

2On 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.

3Complainant alleged during EEO counseling, that while at work on one

occasion, in 1991, he was bound and gagged and on another later occasion

in 1994, he was wire tied to a metal grate by individuals whom he believed

to be members of the Ku Klux Klan (KKK).

4Complainant alleged that in 1993, a certain Sergeant referred to a

cross between a smurf and a black person as a �smigger.� In January

1994, troops in the break room allegedly stated in his presence that

various black civil rights leaders should be killed. In January 1995,

troops allegedly commented to complainant that they were white supremacy

members, that he "better not" be caught out somewhere, and that a tow

truck driver had been killed by skinheads a few years earlier.

5We advise the agency, however, that to the extent that certain aspects

of complainant's claims arise solely within the authority of the agency's

military operations, such matters are not considered to be within the

ambit of the Commission's jurisdiction herein. See Birkle v. Dept. of

the Air Force, EEOC Request No. 05931001 (July 15, 1994).