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.