01983204
05-13-1999
Willie Percy, Appellant, v. William S. Cohen, Secretary, Department of Defense, Defense Commissary Agency Agency.
Willie Percy, )
Appellant, )
)
)
v. ) Appeal No. 01983204
) Agency No. 98DCW35U-014
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Defense Commissary Agency )
Agency. )
______________________________)
DECISION
INTRODUCTION
The Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. and Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The final
agency decision was dated January 27, 1998 but there was no indication
of the date of receipt by the appellant. The appeal was postmarked March
9, 1998. Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency erred in dismissing 8
allegations out of 13 of the complaint for failure to state a claim or
for untimely EEO Counselor contact.
BACKGROUND
The record indicates that on October 27, 1998, the appellant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts
to resolve his concerns were unsuccessful. On October 27, 1997 and
later on December 11, 1997, the appellant filed a formal complaint,
alleging that he was the victim of unlawful employment discrimination
on the basis of his race(black), age(67)and reprisal when:
He was not selected for a detail as work leader;
He was not given an explanation for the selection of other individuals
for details;
He was not informed about the length of his detail;
His detail as work leader was terminated;
His supervisor cursed at him and threatened him;
His report to a second line supervisor of his supervisors threats and
cursing was ignored;
He was not included in the group of employees detailed on a rotational
basis to the position of work leader;
Management failed to investigate an incident of racist graffiti;
His supervisor did not act on his report of co-workers misuse of
government work time, phones and fax machines;
His supervisors made comments to him after he met with an EEO Counselor;
His supervisors failed to give him sufficient time to travel and meet
with an EEO Counselor;
His supervisor terminated his assignment to the Security Cage;
An employee of the Management Employee Relations office MER refused to
assist him with problems in the workplace.
On January 27, 1998, the agency issued a final decision dismissing
allegations 2,3,9,10,11 and 13 for failure to state a claim and
allegations 5,6, and 8 for untimely EEO Counselor contact. Specifically,
with respect to untimely EEO Counselor contact, the agency found that
the appellant contacted a counselor on October 27, 1997 about incidents
which occurred on August 27, 1997. According to the agency, this was
far outside the 45 day time limit for bringing the incidents to the
attention of a counselor.
The appellant claims that the allegations were all part of a continuing
pattern of harassment over time which is connected to present allegations
and should be accepted based on a theory of continuing violations.
ANALYSIS AND FINDINGS
EEOC Regulations 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 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).
As an initial comment, some of the allegations listed by the agency are
fragmentations of claims that are part of larger claims. In that sense,
they should not have been dismissed but combined with other claims.
For instance, allegations 2 and 3 are essentially part of allegations 1
and 4 and also state a claim of disparate treatment. Hence, we do not
agree that they should be dismissed but rather combined with allegations
1 and 4.
We disagree with the agency's dismissal of allegations 5,6 and 8 on
the grounds that the appellant failed to contact an EEO Counselor in a
timely manner. Strictly speaking they do not fall within the 45 day
time period that the appellant contacted the counselor, how-
ever, the agency must first determine whether the allegations were
a part of a continuing pattern of discrimination related to the
timely allegations. If so, then the allegations must be accepted for
investigation.
We agree with the agency's dismissal of allegation 9 which concerns the
alleged refusal of a supervisor to act upon the appellant's reports of
co-worker's illegal behavior. The appellant does not allege disparate
treatment in that other's reports were acted upon nor that he was treated
differently if he acted similarly to those he had reported, therefore,
he has failed to allege a harm or loss with respect to this allegation.
We disagree with the agency's dismissal of allegations 10 and 11 which
concern supervisory actions towards the appellant in response to his EEO
activity. The record reflects that the appellant had been told "not to
engage in any statutory protected activities". He also alleges that he was
denied enough official time to travel and meet with the EEO Counselor.
Threats to an employee by a supervisor regarding that employee's EEO
activity have been recognized as a claim of harassment and reprisal by
the Commission.
See, e.g. Bowden v. Veterans Administration, EEOC No. 01964351,
(September 25, 1998). We also recognize the denial of official time
for pursuing EEO claims as stating a claim under Title VII. See,
e.g., Elliott v. United States Postal Service, EEOC No. 01953675,
(May 2, 1996).
Finally, we agree with the agency's dismissal of allegation 13 for failure
to state a claim. The record indicates that the Management Employee
Relations office is an arm of the agency which addresses questions of
employees, but does not function to help employees in pursuit of their
claims as the appellant mistakenly believed. For this reason, the
appellant does not have a claim related to his contacts with this office.
CONCLUSION
Accordingly, we REVERSE the agency's dismissal of allegations
2,3,5,6,8,10,11, and REMAND them for further processing as indicated
below. We direct the agency to determine whether allegations 5,6, and
8 were part of a pattern of discriminatory conduct which constitute
a continuing violation and if so, the issues should be accepted and
investigated as part of the entire complaint. We AFFIRM the agency's
dismissal of allegation 9 and 13.
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 (R0993)
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. 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.
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:
5/13/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations