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).