William Kasparis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01986403 (E.E.O.C. Mar. 16, 2000)

01986403

03-16-2000

William Kasparis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


William Kasparis v. United States Postal Service

01986403

March 16, 2000

William Kasparis, )

Complainant, )

)

v. ) Appeal No. 01986403

) Agency No. 4B-010-0065-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On August 21, 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 the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et

seq. <1> In its FAD, the agency characterizes complainant's complaint

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

(caucasian), color (white), sex (male) and age (DOB 5/14/46), when:

On April 28, 1997, he was placed on Administrative Leave pending

investigation of allegations of sexual harassment charged against

him; and

Management failed to expedite the investigation conducted into the

sexual harassment charges against him.

Pursuant to EEOC Regulations, the agency dismissed claim (1) for failure

to timely contact an EEO Counselor, and dismissed claim (2) for failure

to state a claim. Specifically, for claim (1), the agency determined that

because complainant's June 16, 1997 initial EEO Counselor contact occurred

more than forty-five days after the April 28, 1997 date he was placed on

Administrative Leave, it was untimely. Although complainant claimed in

his complaint that he only became aware of the agency's discriminatory

disparate treatment on May 29, 1997, the agency also determined that

the action of being placed on Administrative Leave was a discrete and

distinct act that should have raised complainant's suspicion at that time.

Consequently, the agency deemed complainant's explanation as insufficient

to waive or toll the time limit. With regard to issue (2), the agency

determined that because complainant's allegation arose from the agency's

investigation of sexual harassment, which the agency is legally obligated

to do, it failed to state a claim under Commission precedent.

On appeal, complainant reiterates his assertion that only after a May 29,

1997 meeting regarding the allegations against him did he become aware

that similarly situated employees had not been placed on Administrative

Leave following sexual harassment charges against them. Complainant

further explains that, although he knew of the personnel action against

him, "[i]t was only after knowledge of others treated differently came

forward almost by accident that [I] arguably found grounds to pursue a

discrimination claim."

In response, the agency asserts that complainant should have had a

reasonable suspicion of discrimination based upon his immediate placement

on Administrative Leave and his claims of a "spotless" employment history

and shock at the charges against him. The agency further contends that,

even if complainant was not aware of similarly situated employees until

after May 29, 1997, his union representative had knowledge of them (by

virtue of his position as their representative), and therefore should

have advised complainant to seek EEO counseling.

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 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 her control from contacting the Counselor within

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

or the Commission.

With regard to claim (1), we find that complainant provided sufficient

justification for the extension of the relevant time for initiating EEO

Counselor contact. Complainant indicated both in his complaint and on

appeal that he only suspected his placement on Administrative Leave was

discriminatory upon learning after a May 29, 1997 meeting that other

similarly situated employees were not placed on leave when confronted

with allegations of sexual harassment. As the agency has provided no

relevant evidence rebutting complainant's justification, and complainant's

initial EEO Counselor contact occurred within forty-five days of learning

that others similarly situated were not placed on Administrative Leave,

we find that the agency's dismissal was improper.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint 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, .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

22, 1994).

Upon review, we find that the agency properly dismissed claim (2)

for failure to state a claim. Apart from the issue of being placed on

Administrative Leave, complainant alleged in his complaint that although

he was told the sexual harassment investigation would be completed

as quickly as possible, it had been nearly two months since it began

and that the investigation continued without a filed formal complaint

or a report on its status. Merely conducting an investigation into

purported improper or illegal conduct itself, however, without more,

does not result in an injury to a term, condition, or privilege of

complainant's employment. Moreover, the Commission has previously held

that an allegation which arises from an agency's investigation of a

complaint of sexual harassment fails to state a claim, since an agency

is legally obligated to investigate a complaint of sexual harassment.

See Roger v. Department of Defense, EEOC Request No. 05940157 (February

24, 1995). We therefore find that claim (2) was properly dismissed.

Accordingly, the agency's decision to dismiss claim (2) is AFFIRMED.

The agency's decision to dismiss claim (1) is REVERSED for the reasons

set forth herein, and claim (1) 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 claims 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 (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 (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); 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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 16, 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.