01981681
04-13-1999
Willie E. Graves, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Willie E. Graves v. Department of the Navy
01981681
April 13, 1999
Willie E. Graves, )
Appellant, )
)
)
v. ) Appeal No. 01981681
) Agency No. 998-62793-001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On December 24, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on December 6, 1997,
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. In his complaint, appellant alleged that he was
subjected to discrimination on the bases of race (Black) and in reprisal
for prior EEO activity when:
On April 7, 1997, appellant was denied an opportunity to provide input
or participate in the development of the new Engineering Department
organizational structure at SUPSHIPNN prior to commencement of the PERA
(CV) move;
On April 7, 1997, and July 15, 1997, appellant was denied an opportunity
to meet key PERA personnel with the status of being a member of any of
the prestigious PERA transition teams prior to commencement of the PERA
(CV) move;
On March 26, 1997, and April 18, 1997, appellant was denied the
opportunity to participate in developing a strawman plan to backfill
unencumbered positions, including the new PERA (CV) head engineer position
(GM-15), prior to the commencement of the PERA (CV) move;
Although he suggested that the LSV-2 Project position be filled
competitively, on July 18, 1997, appellant was not appointed to write
the LSV-2 Project competitive position description;
Management officials secretly provided appellant's white co-worker
advance knowledge of job-enhancing experiences that were later used
as justification for key assignments that could likely lead to a career
promotion - for example, appellant was not provided information pertaining
to a carrier overhaul operation in Puget Sound in January or February
1997;
On March 5, 1997, appellant's supervisor, with approval of his superior,
attempted to delete from appellant's position description all Special
Program collateral duties; and
Although appellant was the Engineering Department's senior GM-14,
appellant's supervisor appointed a co-worker to participate in the 1997
Chief Engineering Conference in Kings Bay.
The agency dismissed allegations (a) through (f) pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact
with an EEO Counselor in a timely manner. Alternatively, the agency
dismissed allegations (a) through (g) pursuant to 29 C.F.R. �1614.107(a),
for failure to state a claim. Specifically, the agency determined that
appellant's September 18, 1997 initial EEO Counselor contact occurred
more than forty-five (45) days from the dates on which the incidents of
alleged discrimination took place, and was, therefore, untimely. Further,
the agency concluded that appellant failed to identify how the incidents
adversely affected the terms, conditions or privileges of his employment.
Consequently, the agency determined that appellant was not aggrieved.
On appeal, appellant contends that the agency improperly identified
the dates on which the incidents of alleged discrimination took place.
Appellant asserts that the dates used by the agency were the dates on
which his co-workers were provided the opportunities associated with
the PERA (CV) move. Appellant argues that he was not aware that he
had been discriminated against until September 2, 1997, the date of
the PERA (CV) move, because until that time he believed he would be
provided the opportunity to participate in some capacity with the move.
As his initial EEO Counselor contact occurred within forty-five (45)
days of the PERA (CV) move, appellant asserts that it was timely.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
In the instant case, appellant contends that he was not aware of
the alleged discrimination until the date of the PERA (CV) move on
September 2, 1997. However, appellant's submissions on appeal belie
that contention. With regard to allegation (a), the record contains
a memorandum dated April 7, 1997, in which appellant indicated that he
was upset that his co-worker was appointed to the PERA (CV) transition
team because it appeared to be similar to past actions management took
whereby white individuals were placed in a position over appellant.
As a footnote to that memorandum, appellant stated, "I am not satisfied
with the discriminatory and disrespectful actions of top management.
I feel that management is intentionally reprising (sic) against me
by excluding me from any key position, committee, or job assignment."
Based on the foregoing, we find that on April 7, 1997, appellant clearly
suspected that his non-selection as a member of the PERA (CV) transition
team was discriminatory. As appellant did not initiate contact with an
EEO Counselor until more than forty-five (45) days later, we find that
it was properly dismissed for untimeliness.
In allegation (c), appellant alleged that he was discriminated against
when he was not provided the opportunity to participate in developing a
strawman plan to backfill unencumbered positions prior to the commencement
of the PERA (CV) move. The record contains a memorandum dated June 6,
1997, in which the agency announced that appellant's co-worker was
selected to act as the representative from appellant's work location
for the creation of the PERA (CV) organization structure and a strawman
plan to backfill unencumbered positions. We find that appellant should
have suspected discrimination at this time, especially in light of his
prior suspicions that the agency was subjecting him to reprisal for his
prior EEO activity. Accordingly, we find that appellant's September 18,
1997 initial EEO Counselor contact was untimely with respect to this
allegation.
In allegation (e), although appellant alleged that the agency withheld
from him advance knowledge of job-enhancing experiences, he provided
only one such example of this alleged disparate treatment. Absent any
other examples of advantages conferred on appellant's co-worker, we find
that appellant should have suspected discrimination upon learning that
his co-worker was sent to a carrier overhaul operation in Puget Sound
in January or February 1997. As appellant's September 18, 1997 initial
EEO Counselor contact occurred more than forty-five (45) days after this
date, we find that it was untimely.
The record further contains a memorandum from appellant dated March 11,
1997, in which he indicated that he felt that the collateral duties were
being removed from his position description as a result of his prior EEO
complaint. We find, therefore, that appellant suspected discrimination
on or about that date. As appellant did not initiate contact with an
EEO Counselor concerning this issue until September 18, 1997, we find
that dismissal of allegation (f) pursuant to 29 C.F.R. �1614.107(b)
was proper.<1>
The Commission finds that the agency erred in dismissing allegation
(d) for untimeliness. Although the agency identified July 18, 1997,
as the date on which appellant was not appointed to write the LSV-2
Project competitive position description, the record discloses otherwise.
The record contains a memorandum from appellant dated August 28, 1997,
in which he discloses that on August 25, 1997, a coworker was selected
to write the position description for the LSV-2 project. As the record
contains no evidence suggesting that this decision was made prior
to that date, we find appellant's contention that he did not suspect
discrimination until that date is supported by the record. Moreover,
as appellant's September 18, 1997 initial EEO Counselor contact occurred
within forty-five (45) days of this incident, we find that it was timely
raised.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 21, 1994).
With regard to allegation (b), we find that appellant failed to show that
he suffered any tangible harm to the terms, conditions or privileges
of his employment as a result of the denial of the opportunity to meet
key PERA personnel with the status of being a member of any of the
prestigious PERA transition teams. Any alleged harm caused by the lack
of this status is speculative at best and insufficient to render him
aggrieved under the EEOC regulations.<2>
However, in allegation (g) appellant alleged that he was denied
the opportunity to go to a business conference attended by a junior
co-worker. We find that this allegation directly concerns a term,
condition or privilege of employment, as it relates to the denial of an
identified opportunity afforded other employees in appellant's position.
Consequently, we find that the agency erred in dismissing this allegation
pursuant to 29 C.F.R. �1614.107(a).
Accordingly, the agency's decision to dismiss allegations (a), (b),
(c), (e), and (f) is AFFIRMED for the reasons set forth herein. The
agency's decision to dismiss allegations (d) and (g) is hereby REVERSED.
Allegations (d) and (g) are REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
April 13, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Since we are affirming the agency's dismissal of allegations (a), (c),
(e), and (f) on the grounds of untimely EEO Counselor contact, we will not
address the agency's alternative grounds for dismissal, i.e., that those
allegations failed to state a claim.
2Since we are affirming the agency's dismissal of allegation (b) on the
grounds that it fails to state a claim, we will not address the agency's
alternative grounds for dismissal, i.e., that it was untimely.