Robert Fletcher, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01981949 (E.E.O.C. Apr. 10, 2000)

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.