Seth B. Jones, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01a00427 (E.E.O.C. Feb. 24, 2000)

01a00427

02-24-2000

Seth B. Jones, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Seth B. Jones, )

Complainant, )

)

v. ) Appeal No. 01A00427

) Agency No. BGANFO09904J0380

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On October 18, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on July 21, 1999,

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. & the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission accepts

the current appeal in accordance with EEOC Order No. 960.001.<2>

ISSUE PRESENTED

The issues presented herein are whether the agency properly dismissed

the instant complaint for failure to state a claim and for untimely EEO

Counselor contact.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

by the Department of the Army as a medical photographer, GS-1060-9/8.

Complainant states that on August 27, 1998, a memorandum was created

specifying training that he needed to complete for his current position.

However, complainant claims that after four months he did not receive any

of the training in which he was required to take, and he thinks the lack

of training directly inhibited him from receiving meaningful projects.

Therefore, he confronted his supervisor about the lack of training,

but was told he did not need any. Subsequently, complainant did receive

some training, but no meaningful projects were assigned. In addition,

on March 25, 1999, complainant states that a digital camera he stored in a

locked draw was stolen and his supervisors implicated him as the culprit.

Thereafter, on April 12, 1999, complainant states that he transported

to Fort Belvoir to undergo a polygraph test with respect to the stolen

camera although no one else was required to undergo this test.

Believing that he was the victim of discrimination, on April 20, 1999,

complainant initiated contact with an EEO Counselor. During the

counseling period, complainant states that he was denied specific

training and that he alone was required to undergo a polygraph test

following the theft of a camera issued to him.

Counseling failed, and on May 26, 1999, complainant filed a formal

complaint claiming unlawful employment discrimination on the bases of age

(forty and over) and race (black). The complaint was comprised of the

matters for which complainant underwent EEO counseling, discussed above.

On July 21, 1999, the agency issued a final decision dismissing the above

complaint. With regard to the issue of the camera, the agency found

that complainant failed to state a claim and with respect to the issue

of training, the agency found that complainant failed to initiate contact

with an EEO Counselor within forty-five days of the alleged incident.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint 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. 29 C.F.R. �� 1614.103, .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 22,

1994).

The only proper questions in determining whether an allegation in

within the purview of the EEO process are (1) whether the complainant

is an aggrieved employee and (2) whether he has alleged employment

discrimination covered by EEO statutes. An employee is �aggrieved� if

he has suffered a direct and personal deprivation at the hands of the

employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133

(March 2, 1990). Here, complainant states that he was ordered to undergo

a polygraph at the behest of his supervisor. Complainant's allegation

is sufficient to render him an aggrieved employee. Because complainant

has claimed that the adverse action was based on his age (forty and over)

and race (black), he has raised a claim within the purview of the EEOC

regulations. Accordingly, the agency improperly dismissed this claim.

Therefore, the agency is ordered to process this claim in accordance

with this decision and applicable regulations.

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 she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In the present case, with regards to the claim of training, the record

reflects that complainant was aware of a memorandum generated on August

27, 1998, that required him to undergo certain training. However, four

months after the memo was generated, complainant had not received any

training, and he claims that this directly inhibited his ability to

be assigned meaningful projects. The Commission finds that at this

point, complainant should have possessed a reasonable suspicion that

he may be the victim of unlawful employment discrimination. Therefore,

complainant's initial EEO Counselor contact in April 1999, clearly exceeds

the forty-five day limitations period. In addition, complainant has

failed to present adequate justification pursuant to 29 C.F.R. � 1614.105

(a)(2) to extend or waive the limitations period. Accordingly, the

agency properly dismissed this claim for untimely EEO Counselor contact.

CONCLUSION

For the reasons set forth herein, the Commission hereby AFFIRMS in part

and REVERSES in part the decision of the agency dismissing the present

complaint for failure to state a claim and for untimely EEO Counselor

contact. The complaint is REMANDED to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claim 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.

A copy of the agency's letter of acknowledgment to complainant and an

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 (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 (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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

February 24, 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 Assistant1On 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.

2Since the agency did not supply a copy of a certified mail return receipt

or any other material capable of establishing the date complainant

received the agency's final decision, the Commission presumes that

complainant's appeal was filed within thirty (30) days of receipt of the

agency's final decision. See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.402).