01981949
04-10-2000
Robert Fletcher, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Robert Fletcher v. Department of the Army
01981949
April 10, 2000
Robert Fletcher, )
Complainant, )
)
v. ) Appeal No. 01981949
) Agency No. BREJFO9601G0030
Louis Caldera, ) Hearing No. 350-96-8265X
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On January 5, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated December 18, 1997, pertaining
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.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of reprisal when:
on March 13, 1995, he received a Memorandum of Counseling from his
team leader; and
on March 21, 1995, he received a Memorandum of Counseling from his
supervisor.
A review of the record reveals that, in August of 1993, complainant
began employment as a Loan and Grant Clerk within the Family Support
Division at the agency's Fort Huachuca, Arizona facility. In October
of 1994, complainant contacted an EEO Counselor concerning allegations
of harassment in reprisal for a previous complaint filed with the EEO
office. On December 2, 1994, complainant filed a formal complaint, which
culminated in a settlement agreement on January 11, 1995. On February 19,
1995, complainant was promoted to a Social Services Assistant. On March
13, 1995, complainant received a Quarterly Review from the Exceptional
Family Member Coordinator (complainant's team leader). She noted that
complainant's Management Control was deficient, and that complainant was
under the belief that various safe files and other accountability were
not his responsibility. On March 21, 1995, the Chief (complainant's
supervisor) of the Family Support Division issued a formal Memorandum
of Counseling informing him that his work performance was unacceptable
in certain areas. She advised complainant that if he failed to raise
these areas to a satisfactory level, she would be forced to rate him
as unsuccessful and place him on a performance improvement period which
could result in his removal from Federal Service.
The record indicates that complainant sought counseling on March 28, 1995,
and following a final interview, filed a formal complaint on June 7, 1995.
In his formal complaint, complainant raised concerns involving: the March
13th Quarterly Review; a Memorandum of Counseling purportedly given to
him by his team leader; and the alleged continuous harassment by his
team leader and supervisor. The case was investigated and a copy of the
investigative file, as well as a letter outlining complainant's appeal
rights, was sent to complainant on June 13, 1996. On July 11, 1996,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ determined that there were no material disputes of fact and
issued his findings and conclusions without a hearing on November 26,
1997. In its FAD, dated December 18, 1997, the agency adopted the AJ's
recommended finding of no discrimination.
On appeal, complainant contends, mainly, that the investigative record is
incomplete because the agency, as well as the AJ, purportedly confused
the events which are at issue in his complaint. In fact, complainant
asserts that there were two distinct complaints: one pertaining to
the agency Memorandum of Counseling given to him on March 21, 1995 by
his supervisor; and another involving a Memorandum of Counseling, for
which he never received counseling, purportedly given to him on June
6, 1995 by his team leader. Additionally, complainant maintains that
the Memorandum of Counseling he received, on March 13th, was actually
the Quarterly Review. Complainant contends that contrary to both the
agency's and the AJ's conclusion, the Quarterly Review is not an issue
in either complaint. Complainant argues that because the record is
incomplete due to the confusion in the acceptance and processing of
both complainants, an adverse impact has resulted in his ability to
fully present his contentions. Therefore, complainant requests that his
complaint be remanded for a thorough investigation, which also includes
his claim pertaining to the Memorandum of Counseling purportedly given
to him on June 6th by his team leader.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not been
brought to the attention of an EEO Counselor, and is not like or related
to a matter on which the complainant has received counseling. A later
claim or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint and
could have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990).
Here, it can be said that complainant's June 6th claim is "like
or related" to the original complaint because it seemingly adds to
or clarifies complainant's original complaint involving his alleged
performance deficiencies and could have reasonably been expected to grow
out of the original complaint during the investigation. While the record
is replete with information concerning the March 13th Quarterly Review
and the March 21st Memorandum of Counseling, complainant's complaint
must be REMANDED to the agency to conduct a supplemental investigation
of his June 6th claim.
ORDER
Within (60) days of the date this decision becomes final, the agency is
ORDERED to conduct an investigation of all complainant's contentions
involving his claim pertaining to the Memorandum of Counseling purportedly
given to him on June 6th by his team leader. At the completion of this
investigation, the agency shall issue complainant a new, but cumulative,
copy of the investigative report with notice of his right to either a
hearing or an immediate FAD. If 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 investigative
report with notice of complainant's rights must be sent to the Compliance
Officer as referenced below.
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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
April 10, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 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.