01A40984
04-08-2004
Carl P. Ramzy, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Carl P. Ramzy v. Department of Interior
01A40984
April 8, 2004
.
Carl P. Ramzy,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A40984
Agency No. LLM-03-040
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated November 6, 2003, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint dated August 6, 2003, complainant alleged that he was subjected
to discrimination on the bases of race and color when:
On May 30, 2003, the agency began an investigation into his possible
misuse and theft of government equipment.
On June 2, 2003, complainant received a notice that restricted his
access to certain government equipment, vehicles, offices, and buildings.
Some of complainant's duties were reassigned to his co-workers.
Beginning in 1999, complainant was subjected to nonsexual harassment
(hostile work environment), when managers made disparaging comments
about his future employment with the agency.
Beginning in 1999, an agency official told complainant that he would
not be promoted and that he should accept any position elsewhere, and
the official took actions to prevent complainant from being promoted.
In 2001, complainant was the only person of a three person team not to
receive a cash award for work completed on the Statewide Tower Project.
On August 22, 2002, a Notification of Personnel Disciplinary Action was
placed in complainant's in-box in the view of coworkers.<1>
The agency dismissed claims (1) and (2) pursuant to 29 C.F.R. �
1614.107(a)(1), on the grounds that these claims originated from a
criminal investigation and therefore they do not state a claim for
which Title VII provides a remedy. The agency dismissed claims (3),
(4), (5) and (6) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. The agency noted that complainant identified
alleged discriminatory incidents beginning in 1999, with the most recent
act occurring on August 22, 2002, when a Notification of Personnel
Disciplinary Action was placed in complainant's in-box in view of
his coworkers. The agency noted that complainant did not bring these
matters to the attention of an EEO staff person until August 6, 2003,
when he filed his formal complaint. Thus, the agency dismissed issues
(3), (4), (5), and (6) as untimely.
The Commission has previously held that being subject to an investigation
by the Inspector General does not render an individual aggrieved under
the EEOC regulations. See Johnson v. Department of the Navy, EEOC
Request No. 05960699 (April 16, 1998); Mattocks v. Department of the
Navy, EEOC Request No. 05950549 (August 29, 1996). We find claim (1)
is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
With regard to claim (2), we find that the agency improperly dismissed
this claim. We find that claim (2) involves the agency's decision
to restrict complainant's access to agency equipment and to reassign
complainant's duties, based on the on-going investigation. We find
complainant is aggrieved by the agency's decision to limit his access to
agency buildings, equipment and to reassign his regular duties to other
employees. Accordingly, we find the agency's decision to dismiss claim
(2) is improper.
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.
We find that the agency properly dismissed the remainder of complainant's
complaint for untimely EEO Counselor contact. The record reveals that
the most recent alleged discriminatory incident occurred on August 22,
2002; however, complainant failed to initiate EEO Counselor contact
until at the earliest June 3, 2003. We note that complainant's complaint
includes a lengthy narrative from which his claims are drawn, including
significant background information that serves to buttress his current
claims. However, the incidents described in claims (3), (4), (5), and
(6) occurred long before complainant's June 3, 2003 EEO Counselor contact
and are properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
We therefore AFFIRM the agency's dismissal of claims (1), (3), (4),
and (5). We REVERSE the agency's dismissal of claim (2). Claim (2)
is REMANDED to the agency for further processing as directed herein.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 8, 2004
__________________
Date
1Although the agency did not specifically
list this incident as a separate issue, we note that this issue appears
on complainant's formal complaint. Further, we note that the agency did
refer to this incident in its final decision and proceeded to find that
it was untimely raised with an EEO Counselor.