Theodore McGary, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 27, 1999
01991644 (E.E.O.C. Oct. 27, 1999)

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