01990892
01-28-2000
Robert W. Treadaway, Jr.,) Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Robert W. Treadaway, Jr. v. Social Security Administration
01990892
January 28, 2000
Robert W. Treadaway, Jr.,)
Complainant, )
)
v. ) Appeal No. 01990892
) Agency No. 98-0667-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
_________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed claim (1) of the complainant's complaint, pursuant to 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)), for failure to state a claim.<1> We also
find that the agency properly dismissed claims (1-3) of the complainant's
complaint, pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), as untimely.
We make no finding as to the agency's dismissal of claims (1-3) of the
complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), as
duplicative of agency complaint number 95-0326-SSA because the agency
failed to support that finding with documentary evidence.
BACKGROUND
On November 16, 1998, the Commission received the complainant's appeal
from a final agency decision (FAD) received by him on October 13,
1998, 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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
the complainant alleged that he was subjected to discrimination on the
bases of race (white), sex (male), age (46), and reprisal when:
the agency failed to conduct a fair and impartial investigation of his
May 3, 1995 complaint within 180 days of the filing of the complaint
without seeking to agree in writing to extend this period;
the agency reprised against him and subjected him to disparate treatment
for having previously filed an EEO complaint by not selecting him for
vacancy announcement number (VAN) B-2314 in 1994; and
the agency continues to engage in a pattern and practice of favoring
minorities and women over males in general and Caucasian males in
particular in hiring, rating, awarding and promoting, which the
complainant believed led to his nonselection for VAN B-2314 in 1994.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim because it constituted a process claim.
Additionally, the agency dismissed claims (1-3) pursuant to 29 C.F.R. �
1614.107(a)(2) because on July 1, 1998, he untimely sought EEO counseling
on alleged discriminatory incidents which had occurred in December 1994
and early 1995. Moreover, the complainant untimely filed his formal
complaint on September 9, 1998, sixteen days after he had received
the "Notice of Right to File," on August 24, 1998. The agency also
dismissed claims (1-3) pursuant to 29 C.F.R. � 1614.107(a)(1) because
the complainant raised the same issues decided in the agency's favor
under complaint number 95-0326-SSA.
In his appeal, the complainant disputes the agency's findings.
The complainant asserts that his union representative counseled
him that his nonselection for VAN B-2314 could be brought up during
the investigative stage of his May 3, 1995 formal complaint.<2> In
that complaint he alleged that the agency had discriminated against
him when it failed to select him for the job posted under VAN T-384.
The complaint also contained an claim identical to claim (3) of this
complaint, except that he alleged that the systemic discrimination
caused his nonselection for VAN T-384, rather than his nonselection for
VAN B-2314. The investigator, however, referred him to the agency's EEO
office, which instructed him to send a letter identifying the issue and
giving good cause why it should currently be considered. The complainant
submitted the requested letter dated April 9, 1996, as evidence in this
appeal and stated he never received a response to it; thus, he
filed another formal complaint on June 4, 1996, which we note contains
claims as to the complainant's nonselection for VAN B-2314.<3>
The complainant further asserts that he timely sought counseling, as he
contacted an agency EEO counselor on May 3, 1995. He contends that he
learned on April 11, 1995, as aside from another EEO employee, that the
national Civilian Labor Force (CLF) profile<4> applied to GS-12 positions
having management authority, not the Central Maryland CLF as he had
previously been informed. The complainant asserts that upon discovery
of this new and material information, he realized that the agency had
discriminated against him and he sought counseling. The complainant
asserts that this misinformation provided during the informal counseling
stage of his previous complaint dissuaded him from filing a complaint
at the time of the selection for VAN B-2314 on December 26, 1994. Thus,
the complainant contends there were mitigating circumstances which should
waive the timeliness requirements.
Additionally, the complainant contends that these claims were never a
part of the investigative file for complaint 95-0326-SSA. Therefore,
these issues are not being raised for a second time in violation of
29 C.F.R. � 1614.107(a)(1). Moreover, the complainant states that
even though he filed a complaint on May 3, 1995, and again on June 4,
1996, the agency required him to file another complaint on September 9,
1998, so that it could characterize the counseling period as untimely.
The agency submitted its file to the Commission stating that it stood
by its FAD and requested affirmance.
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that fails
to state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 64 Fed. Reg. 37,644,
37,655-56 (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.103); 29 C.F.R. � 1614.106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In the instant case, the record shows that despite the complainant's
arguments to the contrary, claim (1) constitutes a challenge to the
agency's processing of his May 3, 1995 formal complaint, which forced him
to file an alleged June 4, 1996 formal complaint. We note that the record
does not contain any evidence as to how the agency processed either of
these two complaints. However, an claim that an EEO office mishandled
a previously filed complaint and did not follow regulations does not
state an independent claim of employment discrimination. See Short v.
Department of the Air Force, EEOC Appeal No. 01976035 (May 13, 1998),
request for reconsideration denied, EEOC Request No. 05980902 (October
29, 1998).
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 Ball v. U.S.Postal Service,
EEOC Request No. 05880247 (July 6, 1988). 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.
In the instant case, the agency dismissed claims (1-3) because the
complainant untimely sought counseling. The complainant disputes his
untimeliness contending that upon learning new and material information
on April 11, 1995, he sought EEO counseling on May 3, 1995, within the
45-day limit. Alternatively, the complainant alleges that there are
mitigating circumstances which should waive the time limit.
First, we find that the complainant's own submission of his May 3,
1995 formal complaint belies his timeliness argument. The May 3,
1995 formal complaint specifically addresses VAN T-384 and contains no
mention of VAN B-2314 despite his assertion that he became aware of
information supporting an claim of discrimination on April 4, 1995.
Moreover, in a letter dated April 9, 1996, written to the agency EEO
office, the complainant states, "that it was [his] intent to protest this
non-selection [VAN B-2314] at the same time last year in a manner which
was consistent with the advice I was told by my union representative."
We find that the complainant's reliance on a union representative's advice
that he could address VAN B-2314 with the investigator fails to provide
mitigating circumstances because union representatives do not represent
the agency. The agency must extend the time limit for contacting an
EEO counselor if an agency official misled the complainant into waiting
to initiate EEO counseling. See Elijah v. Department of the Army, EEO
Request No. 05950632 (March 28, 1996); Wilkinson v. U.S. Postal Service,
EEO Request No. 05950205 (March 25, 1996) (an agency may not dismiss a
complaint based on an complainant's untimeliness, if that untimeliness
is caused by the agency's action in misleading or misinforming the
complainant).
The agency also dismissed claims (1-3), pursuant to 29 C.F.R. �
1614.107(a)(1), stating that the complainant raised these issues under
agency complaint number 95-0326-SSA. However, the agency failed to
submit any documentary evidence which would allow the Commission to
determine the validity of that finding.
Accordingly, we AFFIRM the agency's FAD to dismiss the complainant's
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 (S1199)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
Jan 28, 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:
_________________________ __________________________
1 On 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.
2 We note that as to this complaint, the record contains only a
copy of the complainant's formal complaint dated April 28, 1995.
The complainant's submission of this complaint as Exhibit A of his appeal
to this Commission does not contain an agency complaint number.
3 We note that as to this complaint, the record contains only a copy
of the complainant's formal complaint date stamped June 4, 1996, by the
agency's Office of Civil Rights and Equal Opportunity and a June 12, 1998
letter written by the complainant requesting the status of this complaint.
No agency complaint number is referenced on either of these documents.
4 "Profiles," as used by the complainant here, are an array of persons
in a position according to sex, age, race, gender, etc.