Thomas L. Smith, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 13, 2000
01986630 (E.E.O.C. Mar. 13, 2000)

01986630

03-13-2000

Thomas L. Smith, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Thomas L. Smith v. Department of the Navy

01986630

March 13, 2000

Thomas L. Smith, )

Complainant, )

)

v. ) Appeal No. 01986630

) Agency No. 9500197009

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On September 1, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) pertaining to 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., and

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq.<1> The agency characterized complainant's complaint as

alleging that he was subjected to discrimination on the bases of race

(African American), color (black), physical disability (leg injury),

and in reprisal for prior EEO activity when he was assigned, as an

Electrical Equipment Repairer, to the Special Projects Staff (SPS)

an excessive number of times.

After accepting and investigating the above issue, in its July 30, 1998

FAD the agency dismissed complainant's claim pursuant to EEOC Regulations

for failure to initiate contact with an EEO Counselor in a timely manner.

Specifically, the agency determined that because complainant's September

7, 1994 initial EEO Counselor contact occurred more than forty-five days

after the April 1993 to April 1994 period of alleged discrimination

identified in the investigative record, it was untimely. In the

alternative, assuming arguendo that the complaint was timely, the agency

also determined that complainant was not discriminated against as alleged.

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 days of the date of

the matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five 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 day

limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In the present case, the record reveals that complainant has an agency

recognized physical disability that restricted him from performing

certain functions. In his complaint, complainant asserted that he was

put into the "Labor pool"<2> three times, and was left in the pool for

an excessive period of time. Although complainant indicated in an April

25, 1995 investigative affidavit that he was assigned to the SPS from

April 1993 through April 1994, he also contends in the EEO Counselor's

report that he had "been in the �excess pool' off and on for one year,

and that he had "been continually assigned there since February 1994."

Complainant also stated in the report that on September 7, 1994, while

part of the excess pool, his regular duty supervisor threatened him with

a RIF action when he refused an assignment that he knew he could not

perform because of his physical restrictions. Further, in his complaint

and in the April 25, 1995 investigative affidavit, complainant asserted

that prior to his assignment to the excess pool he was able to perform

the duties of his regular work with his current restrictions, work

which consisted of 85-90% "Benchwork" performed in a sitting position.

Finally, on appeal, complainant explains that "[t]he SPS was used mostly

as a labor pool," and that while in the SPS, he was "sent out on much more

arduous tasks such as moving desk[s], tables, workbenches and debris."

Upon review of the record, it is clear that the agency failed to

properly define complainant's complaint. Complainant alleged that

he was reassigned for excessive periods from a position where he was

able to perform his duties despite his physical restrictions, to one

that required duties beyond what he was able to perform because of his

physical disability. Therefore, complainant has not merely claimed

that he was assigned to the SPS an excessive number of times, but that

by the excessive period of assignment to the SPS, the agency denied him

the accommodation available to him in his previous assignment. Moreover,

the record is also clear that complainant alleged that he was continually

assigned to the "excess pool" from February 1994 until September 7,

1994, the date complainant sought EEO counseling. Consequently, we find

that the agency failed to correctly define complainant's complaint and

the alleged time period of discrimination, and has improperly dismissed

his complaint for untimely EEO Counselor contact. In addition, as the

agency failed to correctly define complainant's complaint, its alternative

finding that complainant was not discriminated against is also vacated.

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED, and its alternative decision finding no

discrimination is hereby VACATED. The complaint, as defined herein,

is REMANDED to the agency for further processing in accordance with this

decision and the Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claim, as defined by the

Commission above, in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108).

The agency shall acknowledge to the complainant that it has received

the remanded claims within thirty (30) calendar days of the date this

decision becomes final. The agency shall issue to complainant a copy

of the investigative file and also shall notify complainant 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 complainant requests a final decision without

a hearing, the agency shall issue a final decision within sixty (60)

days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and an

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 (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 (M1199)

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 (OFO) 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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

March 13, 2000

Date Carlton M. Hadden, Acting 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 Equal Employment Assistant

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.

2Complainant uses the terms "labor pool" and "excess pool" interchangably

with variations of "Special Projects Staff," throughout the record.