01985794
02-29-2000
Vernon Clevenger, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Vernon Clevenger, )
Complainant, )
)
v. ) Appeal No. 01985794
Richard J. Danzig, ) Agency No. 98-60701-009
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On July 17, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 21, 1998,
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. , the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. <1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of age (DOB 2/10/44), physical disability (HIV positive),
and in reprisal for prior EEO activity when:
Complainant received his Level III Performance Appraisal Rating (PARS)
of November 17, 1997; and
Complainant was subjected to acts of a hostile work environment from
1994 through 1997.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency noted that the last
incident of alleged discrimination occurred on November 17, 1997,
and complainant did not contact an EEO Counselor until January 22,
1998, twenty days beyond the applicable forty-five day time limit.
In the March 21, 1998 counselor's report, the EEO Counselor noted that
complainant stated that he contacted the former Deputy EEO Officer
on November 17, 1997, and expressed a desire to file a complaint.
In its decision, however, the agency found that there was insufficient
evidence to support complainant's assertion that he contacted the former
Deputy EEO Officer (retired) to initiate the EEO complaint process.
Specifically, the agency claimed that according to the former Deputy
EEO Officer's caseload status report, complainant's name is not listed
as having requested informal complaint counseling or having a claim
pending at that time.<2> Furthermore, the agency stated that as a
result of a December 22, 1997 e-mail message, complainant was aware of
the person to contact to initiate the EEO process. Thus, the agency
found complainant's January 22, 1998 contact with the EEO Counselor to
be beyond the forty-five-day time limit for timely counselor contact.
The agency dismissed the other matters in complainant's complaint on
the grounds that they were not like or related to the PARS issue, and
on the grounds of untimely EEO Counselor contact.
The record contains an e-mail message dated December 22, 1997, which
advised agency personnel to contact the Concord EEO Counselor in order
to initiate an EEO complaint. The record also contains a June 17,
1998 e-mail message from complainant to the Concord EEO Counselor, in
which complainant admits that he received the December 22, 1997 e-mail
message regarding EEO counselor contact. Also included in the June 17,
1998 e-mail message is a statement by complainant that he contacted the
previous Deputy EEO Officer on November 17, 1997, to complain about his
PARS rating and indicated that he wanted to file an EEO complaint.
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 (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) 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 (45)
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
With regard to complainant's contention that he initiated contact with
the former Deputy EEO Director on November 17, 1998, we note that
the Commission has previously held that for purposes of satisfying
the criterion of counselor contact, a complainant need only contact an
agency official who is logically connected to the EEO process and exhibit
an intent to pursue his EEO rights. Snyder v. Department of Defense,
EEOC Request No. 05901061 (November 1, 1990). In the present case,
complainant contacted the former Deputy EEO Director, a person who can be
considered logically connected to the EEO process in order to complain of
his PARS rating. We note, however, that there is no evidence of record
whether complainant raised allegations of discrimination with the former
Deputy EEO Director, i.e., exhibited an intent to pursue his EEO rights.
For the foregoing reasons, the Commission hereby VACATES the final
agency decision regarding claim (1) and REMANDS this matter for further
processing in accordance with the Commission's ORDER set forth below.
With regard to the agency's dismissal of the remainder of the issues
in complainant's complaint on the grounds that they were not like or
related to the PARS issue, we find that the agency erred in its decision.
The record reveals that in his formal complaint, complainant stated
that he was subjected to continuing acts of hostile work environment
harassment from 1994 through 1997. Attached to his formal complaint,
complainant listed a series of alleged incidents of hostile work
environment harassment starting in March 1995 and concluding with the
November 17, 1997 performance appraisal. In order to avoid fragmentation
of complainant's complaint, we find that the specific incidents of
harassment listed in his formal complaint should be viewed as one claim
of hostile work environment harassment. Thus, we find that the various
acts stated in issue (2) are like or related to the PARS issue, since
they are all incidents of alleged hostile work environment harassment.
Accordingly, the agency's decision to dismiss the complaint was improper
and is hereby REVERSED. The complaint is hereby REMANDED for processing
in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Conduct a supplemental investigation regarding complainant's November
17, 1997 contact with the former Deputy EEO Director. The agency
shall obtain a statement from the former Deputy EEO Director regarding
the November 17, 1997 contact indicating whether complainant raised an
allegation of discrimination and/or exhibited an intent to pursue his
EEO rights; a statement from complainant regarding his contact with the
former Deputy EEO Director indicating whether he raised an allegation
of discrimination and/or exhibited an intent to pursue his EEO rights;
and any other relevant evidence regarding the November 17, 1997 contact
between complainant and the former Deputy EEO Director.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a new final agency decision or notify
complainant of the claims to be processed.
A copy of the agency's new final decision or notice of the claims to be
processed 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:
February 29, 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 Assistant1On 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.
2The record does not contain a statement from the former Deputy EEO
Director nor does it contain a copy of his caseload status report for
the relevant time period.