01991644
10-27-1999
Theodore McGary, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Theodore McGary v. Department of the Army
01991644
October 27, 1999
Theodore McGary, )
Appellant, )
) Appeal No. 01991644
v. ) Agency No. AQFDF098091270
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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 appeal is accepted in
accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor, failure to state
a claim, and stating a claim that has been decided by the agency.
BACKGROUND
Appellant filed a formal complaint on May 18, 1998, alleging
discrimination on the bases of race (African American) and reprisal when:
On May 15, 1997, appellant's immediate supervisor-1 issued appellant
a letter of counseling criticizing him for providing counseling and
assistance at the supervisor's request;
On July 8, 1997, Legal Services issued a memorandum to appellant's
immediate supervisor-1, requesting that appellant not be assigned to
pending or future cases involving allegations of Living Quarters Allowance
(LQA) fraud;
On or about July 11, 1997, both appellant's immediate supervisor-1 and
second-line supervisor, accepted Legal Services' assessment of appellant
without according appellant any "due process";
On July 14 and 15, 1997, appellant's immediate supervisor-1 issued
appellant two memoranda removing him from his role on LQA cases based
on the July 8, 1997, memorandum;
During August 1997, appellant provided the Executive Assistant detailed
accounts of alleged acts of discrimination directed at appellant;
During the month of April or May 1997, appellant's immediate supervisor-1
attempted to sabotage appellant's professional reputation when she
directed him not to meet with a manager on a scheduled appointment;
On August 7, 1997, appellant's immediate supervisor-1 gave an overall
performance rating of level 3, for the rating period December 30, 1996,
through August 31, 1997, because appellant disagreed with supervisor's
strategy for dealing with LQA cases;
On or about October 7, 1997, appellant's immediate supervisor-2 excused
appellant from scheduled training. However, appellant's second-line
supervisor directed appellant to return to training, in a hostile and
belligerent tone of voice and in the presence of supervisor-2 and two
co-workers;
On January 9, 1998, appellant became aware that he was not selected for
the position of Supervisory Employee Relations Specialist, GS-203-13,
Department of the Army Referral List (DARL) 97SE003195, when his
second-line supervisor informed appellant that she had selected
appellant's immediate supervisor-2 for the position;
On February 25, 1998, appellant was issued a memorandum proposing a 5-day
suspension effective May 4-8, 1998, on alleged charges of insubordination
and uncooperative, disrespectful, and defiant behavior;
On or about March 12, 1998, appellant provided Executive Assistant a
written reply to the proposed 5-day suspension. Executive Assistant did
not give appellant a decision as to this matter until April 30, 1998; and
On April 28, 1998, appellant was informed that he would be placed on
suspension without pay for the period May 4-8, 1998, while appellant
was on statutory leave under the Family Medical Leave Act.
In its FAD, the agency dismissed the complaint. Allegations (A), (B),
(C), (D), (E), (F), (G), (H), and (I) were dismissed for untimely EEO
Contact, pursuant to 29 C.F.R. �1614.107(b). The agency found that
appellant contacted the EEO Counselor on March 7, 1998. The EEO Counselor
requested an explanation for appellant raising these allegations beyond
the forty-five (45) day limit. Appellant responded that he met with
EEO Counselors. When he was further questioned about his contacts,
appellant failed to provide any information. Therefore, the agency
dismissed allegations (A)-(I) for untimely contact with an EEO Counselor.
Pursuant to 29 C.F.R. �1614.107(a), the agency dismissed allegations (J),
(K), and (L) for failure to state a claim. In its FAD, the agency found
that allegations (J) and (K) were proposals for the 5-day suspension
and were, therefore, preliminary steps in taking a personnel action.
The agency also found that allegations (J), (K), and (L) were subjects
of an administrative grievance that appellant had filed. Therefore,
it dismissed allegations (J), (K), and (L) for stating a claim that has
already been decided by the agency. This appeal followed.
ANALYSIS AND FINDINGS
Allegations (A)-(I)
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the appellant can establish that
appellant was not aware of the time limit, that appellant did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence appellant was
prevented by circumstances beyond his or her control from contacting
the EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
In the case at hand, the evidence reveals that appellant contacted the
EEO Counselor on March 7, 1998 which was after the expiration of the
applicable time limitation. In his appeal, appellant alleges that the
incidents listed in his complaint establish a continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is not sufficient to allege that the effects of past discrimination
have continued until the present. In Berry, the court set forth
three relevant factors. The first is whether the acts involved the
same type of discrimination. It is necessary to determine whether
the acts are interrelated by a common nexus or theme. See Vissing
v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13,
1989); Verkennes v. Department of Defense, EEOC Request No. 05900700
(September 21, 1990); Maldonado v. Department of the Interior, EEOC
Request No. 05900937 (October 31, 1990). The second factor is whether
the events were recurring or isolated incidents. The final element is
the degree of permanence which should trigger an employee's awareness of
and duty to assert his or her rights or which should have indicated to
the employee that the continued existence of the adverse consequences
of the act is to be expected without being dependent on a continuing
intent to discriminate. Should these factors exist, appellant will have
established a continuing violation and the agency would be obligated to
"overlook the untimeliness of the complaint with respect to some of the
acts" challenged by appellant. Scott v. Claytor, 469 F. Supp. 22, 26
(D.D.C. 1978).
Furthermore, it is important, in determining whether a claim for
continuing violation is stated, to consider whether an appellant had prior
knowledge or suspicion of discrimination and the effect of this knowledge.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that he is being discriminated against until he
has lived through a series of acts and is thereby able to perceive the
overall discriminatory pattern).
Upon review of the file, the evidence indicates that appellant believed
that he had been the subject of discrimination. Appellant has stated
that he became aware of the alleged discrimination but failed to promptly
contact the EEO Office. In his complaint, he states that he "exhausted
all efforts to obtain a satisfactory settlement with management officials
for blatant acts of discrimination against [him]" from May 15, 1997
through April 30, 1998. Therefore, we find that appellant fails the
Sabree test and, therefore, does not establish a continuing violation.
Finding that appellant failed to establish a continuing violation,
the Commission finds that appellant was untimely when he contacted
the EEO Counselor regarding allegations (A)-(I). Therefore, we find
that the agency properly dismissed these allegations pursuant to 29
C.F.R. �1614.107(b).
Allegation (K)
EEOC Regulation 29 C.F.R. �1614.107(a) 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. 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).
Upon a review of the record, we find that in allegation (K), appellant
asserts that the Executive Assistant did not respond to appellant's
grievance until April 30, 1998. We find that this allegation constitutes
a collateral attack on the grievance determination. A collateral attack
involves a challenge to another forum's proceeding. Lau v. National
Credit Union Administration, EEOC Request No. 05950037 (March 18, 1996).
The Commission will not review allegations related to how an employee's
grievance was ultimately decided. See Bowie v. United States Postal
Service, EEOC Request No. 05910802 (February 4, 1992). Appellant's
complaint did not center on discrimination within the grievance process.
Instead, as the record indicates, appellant merely alleged dissatisfaction
with the outcome of the grievance process. Therefore, the Commission
finds that allegation (K) is dismissed for failure to state a claim.
Allegations (J) and (L)
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The agency dismissed allegations (J) and (L) on the grounds that appellant
raised the same matter contained in an administrative grievance.
The record indicates that appellant did raise formal administrative
grievances regarding the notice of the proposed five (5) day suspension as
well as actual suspension. We find that appellant's decision to resort
to a grievance procedure on a disciplinary action is not equivalent to
appellant's pursuit of the EEO complaint process. Therefore, we find
that the agency's FAD improperly dismissed allegations (J) and (L)
pursuant to 29 C.F.R. �1614.107(a).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED regarding allegations
(A)-(I) and (K) and REVERSED regarding allegations (J) and (L) and
REMANDED for further processing in accordance with this decision and
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. �1614.410.
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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
Oct. 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations