01982112_
04-28-1999
Theodis J. Thornton, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Theodis J. Thornton, )
Appellant, )
)
v. ) Appeal No. 01982112
) Agency No. ANBSFO980310050
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
I. INTRODUCTION
On January 13, 1998, appellant filed the instant appeal from the agency's
December 4, 1997 final decision accepting in part and dismissing in part
appellant's complaint. The agency dismissed one allegation, pursuant to
29 C.F.R. � 1614.107(a) on the grounds that the same claim had been raised
in an earlier complaint. It dismissed a second allegation, pursuant to
29 C.F.R. � 1614.107(b) on grounds of untimeliness. The agency accepted
the complaint's seven remaining allegations for investigation.
II. ISSUE
Whether the agency erred in dismissing the allegations on the ground of
untimeliness or on the ground that the matter asserted had been raised
in an earlier complaint.
III. BACKGROUND
On October 23, 1997, appellant filed a 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. Appellant alleged that he was
subjected to discrimination on the basis of race (Black) and in reprisal
for prior EEO activity.
At issue in this appeal are appellant's allegations, as summarized by
the agency, that he was discriminated against when:
[1] on 17 March 1997, he met with [Manager 1] in a conference and
discussed his complaints of harassment [by] and unfair treatment [from]
[Manager 2]. He alleged that [Manager 1] failed to take appropriate
action to correct the problems in the workplace. He alleged that [Manager
1] also failed to take action to assure that [Manager 3] was prohibited
from taking any disciplinary or adverse action against him for filing
a complaint. He also alleged that [Manager 1] has allowed his career,
character, integrity, trustworthiness, and reputation to become damaged
in the Arsenal workplace; and
[2] he [did] not receive any support from [Manager 3] in order to
maintain an efficient and well managed Industrial Funds Stock program.
The EEO Counselor's report shows that appellant first brought these
matters to the attention of the counselor's office on October 1, 1997.
In its final decision the agency dismissed allegation 1 on the ground
that the complaint was time-barred because appellant had failed to
contact the EEO Counselor within the 45-day time period mandated by
29 C.F.R. � 1614.105(a)(1). It dismissed allegation 2, pursuant to 29
C.F.R. � 1614.107(a), on the ground that appellant �had already raised
this issue in his Complaint dated 9 June 1997.�
IV. ANALYSIS AND FINDINGS
A. Timeliness
We find that the agency erred in dismissing allegation 1 on grounds of
untimeliness. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination be brought to the attention of the Equal
Employment Opportunity Counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action, within
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 45-day limitation period is triggered.
See Ball v. USPS, 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.
In the instant case, as it explains in its statement on appeal, the agency
based its decision to dismiss on the fact that appellant met with his
superior on March 17, 1997 to air his concerns about management practices
but did not contact an EEO Counselor until October 1, 1997, more than
45 days later. In our view, this is a misreading of the facts alleged.
It does not appear to us that appellant is alleging in his complaint that
all of the events described in allegation 1 occurred on March 17, 1997.
For example, the reference in allegation 1 to �filing a complaint�
apparently refers to EEO complaints filed by appellant in June and July
1997, several months after the March 17th meeting. The allegation also
refers to retaliatory actions that may have transpired sometime after
the filing of those complaints. Other matters averred in allegation 1
also appear to relate to events of a continuing nature. An agency is
not free to construe a complainant's allegations as it sees fit. Here,
we believe the agency has misconstrued allegation 1 and that its decision
to dismiss the allegation based on that misconstruction was improper.
Even if the agency's construction of allegation 1 were correct, the
agency has not laid an adequate factual foundation to justify a dismissal
on untimeliness grounds. It is well-established that "[a]n agency
always bears the burden of obtaining sufficient information to support
a reasoned determination as to timeliness." Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992). It is incumbent
upon the EEO Counselor to inquire into the reasons for the delay when a
complainant initiates counseling beyond the applicable time limit. See
Young v. U.S. Postal Service, EEOC Request No. 05870263 (January 20,
1988). The record in this case does not indicate that the EEO Counselor
conducted an inquiry with respect to the timeliness of appellant's
counselor contact. Indeed, it appears from the EEO Counselor's report
that the counselor believed appellant's complaints to be timely raised.<1>
B. Allegations Raised In Prior Complaint
We find that the agency erred in dismissing allegation 2 on the
ground that the same issues had been raised in a prior complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a) requires the agency to dismiss a
complaint or a portion of a complaint that fails to state a claim under �
1614.103 or � 1614.106(a) or states the same claim that is pending before
or has been decided by the agency or Commission. However, the Commission
has interpreted this regulation to require that the allegation must set
forth the "identical matters" as are contained in a previous complaint
filed by the same complainant, in order for the subsequent complaint to
be rejected as stating the same claim. See Russell v. Dept. of the Army,
EEOC Request No. 05910613 (August 1, 1991)
Here, as its statement on appeal explains, the agency is contending that
allegation 2 raises a claim previously asserted by appellant in an EEO
Complaint he filed on June 9, 1997. The agency does not explain, however,
why it believes the two claims involve �identical matters.� Allegation
2 of the instant complaint involves mismanagement of a program called
�Industrial Funds Stock.� That program is not named in the portion of
the June 9, 1997 complaint identified by the agency as duplicative.
The June 9, 1997 complaint involves events in 1996 and early 1997.
The instant complaint is not limited in time. Under these circumstances,
we conclude that the dismissal of allegation 2 was improper.
V. CONCLUSION
For the foregoing reasons, the agency's final decision is VACATED and
the allegations are REMANDED for further processing in accordance with
the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (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. � 1614.10.
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:
4/28/99
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The EEO Counselor's report contains the following entry �Reason for
Delayed Contact Beyond 45 days, if applicable: Not Applicable.�