01990476_r
09-07-1999
Stanley E. Smith, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Stanley E. Smith, )
Appellant, )
)
v. ) Appeal No. 01990476
) Agency No. BHFR9807I1300
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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 final agency decision was issued on September
11, 1998. The appeal was postmarked October 21, 1998. Accordingly,
the appeal is considered timely<1> (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On July 22, 1998, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
On August 20, 1998, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the basis
of race. Specifically, appellant alleged that on April 23, 1998,
a co-worker referred to him in a racially offensive manner by calling
him a �n----r,� and used other racially offensive terms in describing
other black agency employees.
On September 11, 1998, the agency issued a final decision, dismissing
appellant's complaint for failure to timely contact an EEO Counselor.
Specifically, the agency found that appellant's initial EEO Counselor
contact occurred on July 22, 1998, which was more than forty-five
days after the alleged discriminatory event occurred, in April 1998.
The agency also dismissed appellant's complaint on the alternative
grounds of failure to state a claim.
On appeal, appellant argues that he has not been properly informed of
his �legal rights.� Appellant specifically argues that for weeks after
the incident addressed in the complaint purportedly occurred, appellant
repeatedly asked an agency Supervisor what action was going to be taken;
and that the Supervisor delayed in providing him with a substantive
response. Appellant argues that on or about July 22, 1998, he again
unsuccessfully asked his Supervisor, who told him he could contact an EEO
Counselor on this matter if he wished to pursue the EEO complaint process.
In response, the agency argues that an agency Supervisor first informed
appellant of his right to pursue the EEO complaint process on April 23,
1998, and that his initial EEO Counselor contact in July 1998, was well
beyond the forty-five day limitation period. In support of this argument,
the agency provides the memorandum of the Supervisor, dated July 21, 1998.
Therein, the Supervisor stated that on or about April 23, 1998, he �told
[appellant] that he had the option of filing an EEO complaint if he
wished to do so.�
The agency also argues that the matter raised in appellant's formal
complaint fails to state a claim. Specifically, the agency argues that
appellant was not present when the comment was made; that the comment
was not physically threatening; and that there is no evidence that the
comment was part of a hostile work environment.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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; �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).
The only proper questions in determining whether an allegation is
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 the EEO statutes. An employee is "aggrieved"
if he has suffered 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, appellant alleged that on April 23, 1998, a
co-worker called him a racially offensive name. The Commission has held
that a limited number of offensive slurs about a federal employee's
race, such as the one addressed in the instant complaint, may in fact
state a claim or support a finding of discrimination under Title VII.
See Yabuki v. Department of the Army, EEOC Request No. 05920778 (June 4,
1993) and Brooks v. Department of the Navy, EEOC Request No. 05950484
(June 25, 1996). Appellant's allegation is sufficient to render him
an aggrieved employee. Because appellant has alleged that the adverse
action was based on race, he has raised an allegation within the purview
of the EEOC regulations. Accordingly, the agency's decision to dismiss
appellant's complaint for failure to state a claim was improper and
is REVERSED.
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. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the limitations period is not
triggered until a
complainant reasonably suspects discrimination, but before all the facts
that support a charge of discrimination have become apparent.
On appeal, appellant argues that he was unaware that he could pursue
the EEO complaint process until he had a conversation with an agency
Supervisor on July 22, 1998. In response, the agency argues that an
agency Supervisor informed him that he could pursue the EEO complaint
process on or about April 23, 1998, when the alleged discriminatory
incident purportedly occurred. In support of this argument, the agency
submits a copy of a memorandum from the agency Supervisor. Therein, the
Supervisor stated that on or about April 23, 1998, he informed appellant
that he could pursue the EEO complaint process. The Supervisor's
memorandum, however, does not indicate that appellant was specifically
informed that he had forty-five days from the date he reasonably suspected
discrimination in which to contact an EEO Counselor. Given the dearth of
information in the record regarding whether appellant was made aware of
the forty-five day limitation period when he corresponded with an agency
Supervisor in April 1998, or was aware of the applicable time limit
through some other means, we are unable to determine whether appellant's
initial EEO Counselor contact was timely. Accordingly, the agency's
decision to dismiss appellant's complaint for failure to timely contact
an EEO Counselor is VACATED. Appellant's complaint is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation to ascertain
whether appellant had been informed of the forty-five day limitation
period for contacting an EEO Counselor, and when and how appellant had
been so informed.
Thereafter, the agency shall issue a new final decision or notify
appellant that the agency is processing his complaint. The supplemental
investigation and issuance of the final decision or notice of processing
must be completed within thirty (30) calendar days of the date this
decision becomes final. A copy of the agency's new final decision
or notice of processing must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Sept. 7, 1999
__________________________________ DATE
Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the date
of the complainant's receipt of the dismissal or final decision. See 29
C.F.R. �1614.402(a). Because the agency failed on appeal to supply
a copy of the certified mail receipt or any other material capable of
establishing that date, the Commission presumes that the appeal was filed
within thirty (30) calendar days of the date of appellant's receipt of
the final decision.