01975813
10-20-1998
Carl Boykin, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Carl Boykin v. Department of Health and Human Services
01975813
October 20, 1998
Carl Boykin, )
Appellant, )
)
v. ) Appeal No. 01975813
) Agency No. OSH-004-97
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated June 27, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The appellant's February 7, 1997 complaint alleged that based on his race
(African American) he had been denied equal opportunity to compete for
promotions due to the discriminatory practices of the agency's promotion
system.
The agency accepted 5 identified non-selections for investigation. The
agency dismissed the remaining 15 identified non-selections: 12 for
untimely EEO counselor contact on August 12, 1996; 1 as stating the same
claim which already had been decided in another complaint; and 2 as not
within the Office of the Secretary's jurisdiction. The agency's decision
indicated that, according to agency records, the appellant had requested
and participated in both pre-class and individual EEO counseling since
1993 and continuing. The decision inferred that, therefore, the appellant
had knowledge of the time limitation for EEO counselor contact and that
the appellant had reason to suspect discrimination long before he received
a July 19, 1996 Freedom of Information Act response. The decision also
represented that information regarding selections for vacancies had been
available through the Personnel Office.
On appeal, the appellant contends that the discriminatory practices
(providing details to white pre-selectees, tailoring qualifications
to the white pre-selectees, and limiting areas of consideration)
are on-going. He also represents that often the agency did not notify
him of the non-selections. The appellant further contends that he had
discussed in other complaints the discriminatory practice utilized in
the 1991 non-selection, but that he had not previously filed a complaint
regarding the 1991 non-selection.
The agency responds that the appellant has suspected discrimination in
the agency's selection practices since 1993, as evidenced by the class
complaint which he filed that year. The agency also contends that the
appellant has been notified that he should file EEO complaints involving
discrimination by the agency's Administration for Children and Families
at a different EEO Office.
After a review of the record, the Commission finds that the appellant's
August 12, 1996 EEO counselor contact was untimely regarding the 1991
non-selection (allegation 20). The appellant admits on appeal that he
had discussed the alleged discrimination in prior complaints. Therefore,
the Commission concludes that the appellant suspected discrimination
regarding the 1991 non-selection more than 45 calendar days prior to his
current EEO counselor contact. Accordingly, the Commission affirms the
agency's dismissal of allegation 20, notwithstanding the appellant's
continuing violation contentions. See Sabree v. United Brotherhood of
Carpenters and Joiners Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990)
(a knowing plaintiff has an obligation to file promptly with the EEOC
or lose his claim); Roberts v. Gadsden Memorial Hospital, 850 F.2d 1549
(11th Cir. 1988) (per curiam) (a claim arising out of an injury which is
"continuing" only because a plaintiff knowingly fails to seek relief is
exactly the sort of claim that Congress intended to bar by the limitations
period).
Similarly, the Commission finds that the appellant should have suspected
discrimination regarding 12 other non-selections as soon as he received
notice of his non-selection. However, the record does not contain evidence
demonstrating that the appellant was notified or otherwise learned
of the 12 non-selections more that 45 days before his August 12, 1996
EEO counselor contact. Therefore, the Commission reverses the agency's
dismissal of allegations 1, 2, 5 through 8, 10 through 14, and 18.
In so doing, the Commission recognizes that during the investigation
of the 12 non-selections, the agency may obtain evidence which proves
that the appellant learned of one or more of these non-selections more
than 45 days before his August 12, 1996 EEO counselor contact. If so,
this decision does not foreclose the agency from dismissing any untimely
raised allegations at the close of the investigation.
The Commission reminds the agency that evidence pertaining to untimely
raised non-selections may provide relevant evidence for the timely-raised
allegations. The Commission also notes that if discrimination is found,
the back pay award would be limited to the two year period which preceded
the filing of the appellant's February 7, 1997 complaint. EEOC Regulation
29 C.F.R. �1614.501(c)(1).
As to the remaining allegations, 16 and 19, the Commission finds that the
agency erred in dismissing the allegations because they were not within
the jurisdiction of a particular agency EEO Office. This is not one of the
grounds for dismissal set forth in EEOC Regulation 29 C.F.R. �1614.107. If
the agency chooses to have a different office process a complainant's
complaint allegations, the agency must transfer the complaint allegations
to that office and notify the complainant of the transfer. Accordingly,
the Commission reverses the agency's dismissal of allegations 16 and 19.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegation 20; REVERSES the agency's dismissal of allegations
1, 2, 5 through 8, 10 through 14, 16, 18 and 19; and REMANDS allegations
1, 2, 5 through 8, 10 through 14, 16, 18 and 19 to the agency for
processing as ORDERED 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� (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 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 (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:
October 20, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations