Thomas E. Melton, Jr., Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
01991675 (E.E.O.C. Aug. 9, 2000)

01991675

08-09-2000

Thomas E. Melton, Jr., Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Thomas E. Melton, Jr. v. Department of the Air Force

01991675

August 9, 2000

Thomas E. Melton, Jr., )

Complainant, )

)

v. ) Appeal No. 01991675

) Agency No. AL900990253

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DECISION

Based on a review of the record, we find that the agency, in its November

27, 1998 final decision (FAD), improperly dismissed complainant's October

8, 1998 formal EEO complaint,<1> alleging nonselection for promotion to

the position of Aircraft Engine Mechanic Supervisor, based on age,<2>

for untimely EEO Counselor contact. See 64 Fed. Reg. 37,656 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)). The

agency has offered no arguments in response to complainant's timely

appeal of December 22, 1998,<3> by his representative, to persuade us

to the contrary. Although the agency file contains a reference to the

agency's opposing arguments, no such document appears in the file.

EEOC Regulations require a complainant to initiate EEO counseling within

45 days of the alleged discriminatory event, or alleged discriminatory

personnel action. See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to

and to be codified as 29 C.F.R. � 1614.105(a)(1)). Time limitations shall

be extended when a complainant makes an adequate showing of justification

for an extension. See 64 Fed. Reg. 37,656(1999)(hereinafter referred

to and to be codified as 29 C.F.R. � 1614.105(a)(2)). In addition, time

limitations are subject to waiver, estoppel, and equitable tolling. See

64 Fed. Reg. 37,661(1999)(hereinafter referred to and to be codified as

29 C.F.R. � 1614.604(c)).

The Commission has applied a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO Counselor. See Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period for

contacting an EEO Counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent.

However, in the present matter, the Commission finds that the agency

has not met its �burden of obtaining sufficient information to support a

reasoned determination as to timeliness." See Guy, Jr. v. Department

of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting

Williams v. Department of Defense, EEOC Request No. 05920506 (August

25, 1992)). In this regard, we find the agency has failed to provide a

sufficiently clear and adequate record in support of the FAD. See Henry

v. U.S. Postal Service, EEOC Request No. 05940897 (May 10, 1995), citing

Gens v. Department of Defense, EEOC Request No. 05910837 (January 31,

1992); Hines v. U.S. Postal Service, EEOC Appeal No. 01923566 (May 13,

1993).

The Commission finds that the FAD dismissed the complaint on the grounds

that complainant's initial EEO contact, of June 18, 1998, was beyond the

applicable time period of 45 days. See 64 Fed. Reg. 37,656 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. � 1614.105(a)(1)).

However, we find the FAD deficient as to the nature of the alleged act

of discrimination and the date of the alleged act of discrimination.

In addition, the Commission finds the agency's processing of complainant's

complaint to be improper. We find that the author of the FAD was the

agency activity's Chief EEO Counselor (�CEEO�), who also counseled

complainant, at least during part of the process.<4> The Commission

finds that CEEO's actions are inconsistent with the requirement that EEO

Counselors be neutral and impartial, and jeopardize the integrity and

credibility of the EEO program. See the Commission's Equal Employment

Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),

as revised, November 9, 1999, Ch. 2, � III. We further find improper

CEEO's February 5, 1999 memorandum stating, in relevant part: �The

agency opposes the Complainant's appeal. Failing to comply with the

applicable time limits to initiate contact is grounds of the opposition

in this case.� It does not appear, however, that CEEO ever inquired into

the reasons, if any, for complainant's alleged untimely EEO contact, as

CEEO was required to do. See McDonald v. Department of Transportation,

EEOC Request No. 05960642 (August 11, 1998).

The Commission also finds that a portion of CEEO's memorandum not

only contradicts the FAD, but also is inadequately supported by record

evidence in its (the memorandum's) ultimate conclusion. Specifically,

we refer to the following comments by CEEO:

The complainants' [sic] representative raised the �discriminatory'

issue to the unit commander via fax on 8 May 1998. This is the date

the complainant initially contacted this agency. The date the complainant

approached the EEO complaint system is not the factor for this dismissal.

The 8th of May 1998 is an initial contact date and the 15th of March 1998

was the date of the promotion action. The notification to employees was

on the 20th of March 1998 is [sic] the date complainant became aware of

the personnel action dates. The time period from 8 May 1998 to either

the 15th of March or the 20th of March exceeds 45 days.

The complainants' [sic] date of factual awareness is 8 May 1998 of

the initial contact to the unit commander. These aforementioned facts

confirm this Agency's dismissal of this complaint.

Record evidence shows that the selectee was chosen on February 11, 1998,

with an effective date of March 15, 1998. We note that, according to

the EEO Counselor's report, the selecting official, on February 20,

1998, �briefed subordinates of selection during staff meeting.�

By letter dated May 8, 1998, complainant's representative contacted the

activity's Wing Commander and advised him that the representative had

been hired �to represent and independently investigate� the agency's

handling of the promotion at issue. The representative further wrote,

in relevant part, that �it is our understanding that [the selecting

official] did not employ basic merit promotion criteria for his most

recent competitive service promotion, pointing to a possible prima facie

case of discrimination in his promotion selection of [the selectee].�<5>

We find that the Chief of Civilian Personnel (�CPO�) responded to

complainant's representative in a June 4, 1998 letter, advising him,

in pertinent part as follows:

Complainant is apparently not a member of any protected group which would

support a prima facie case of discrimination. However, if [complainant]

is attempting to file some type of discrimination complaint he should

contact a local EEO counselor.

It appears that complainant received CPO's letter on June 12, 1998.

The Commission finds, from its review of complainant's arguments on

appeal, that he is relying on June 12, 1998, as the triggering date for

the 45 days within which he had to initiate EEO counseling. Although

complainant states, on appeal, that he in fact initiated EEO counseling

on June 19, 1998, complainant contends that it was only on June 12, 1998,

when he received CPO's letter, that �complainant only became �reasonably

aware' of �factual issues and basis' involving his age and recommended

action by [CPO] after a review of the facts and written concerns.�

Having reviewed the entire record in this case, the arguments on

appeal, including those arguments not expressly addressed herein, and

for the foregoing reasons, the Commission hereby VACATES the FAD and

REMANDS complainant's complaint for further processing consistent with

the Commission's decision and applicable regulations. The parties

are advised that this decision is not a decision on the merits of

complainant's complaint. The agency shall comply with the Commission's

Order set forth below.

ORDER

The agency is hereby ORDERED to take the following actions:

(1) The agency shall conduct a supplemental investigation into the date

complainant knew or reasonably should have known he had been discriminated

against, in connection with the nonselection at issue, for the purpose

of determining the date by which complainant should have initiated EEO

counseling to be timely.

(2) The supplemental investigation shall include all relevant documents,

not previously provided by the agency and referenced in this matter,

including but not limited to statements under oath or affirmation

from persons with first-hand knowledge of relevant events, including

statements from complainant himself, as to when complainant knew or

reasonably should have known he had been discriminated against.

(3) At the conclusion of the supplemental investigation, the agency

shall issue a report of supplemental investigation and either a letter

to complainant and his representative accepting the complaint at issue,

or a new final decision, with appeal rights to the Commission, again

dismissing the complaint.

(4) A new final decision of dismissal shall clearly identify all

applicable bases of discrimination and claims raised, and shall identify

with specificity all legal grounds for dismissal and all facts and

documents relied on in dismissing complainant's complaint.

All Ordered actions, including the completion of the supplemental

investigation, issuance of the investigative report and letter of

acceptance or new final decision, shall be completed within sixty (60)

calendar days of the date the Commission's decision becomes final

in this matter. Copies of all relevant documents, including those

items referenced in this paragraph, shall be sent to complainant,

his representative, and to the Commission's Compliance Officer, as

referenced below. The parties are advised that the Commission's Office

of Federal Operations will issue sanctions against the agency if and

when it determines that the agency is not making reasonable efforts to

comply with a Commission order to investigate a complaint.

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 (M0300)

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 (OF) 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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

August 9, 2000

Date Carlton M. Hadden, 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

1On 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.

2See the Age Discrimination in Employment Act (ADEA) of 1967, as amended,

29 U.S.C. � 621 et seq. The Commission notes that, in his complaint,

complainant requested inter alia compensatory damages. However,

compensatory damages are not available in claims brought under the

ADEA. See Taylor v. Department of the Army, EEOC Request No. 05930633

(January 14, 1994).

3See 64 Fed. Reg. 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.402).

4In his complaint, complainant identified CEEO as his EEO Counselor,

although we note an August 13, 1998 letter wherein CEEO directed

complainant to contact another, named, EEO Counselor. It also appears

that it was CEEO who provided complainant with the required Notice of

Final Interview. See 64 Fed. Reg. 37,656 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.105).

5Record evidence reveals that complainant was 51, and the selectee was

41, at the time this matter arose.