01A34800
03-12-2004
Charles A. Stephens, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Charles A. Stephens v. Department of Transportation
01A34800
March 12, 2004
.
Charles A. Stephens,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A34800
Agency No. 3-03-3084
DECISION
According to the agency, complainant initiated contact with an EEO
Counselor on March 5, 2003. On May 2, 2003, complainant filed a formal
EEO complaint wherein he claimed that he was discriminated against
on the bases of his national origin (Non-Hispanic) and in reprisal
for his previous EEO activity under Title VII. The claims raised by
complainant involve: (1) in 1999, he was required to again complete
on the job packages for Certifications CP 47/47 and CP 32 after the
agency lost the original packages that he submitted; (2) in or around
October 2002, a Communications Watch Stander was moved out of the
Communications Unit and into the Automation Unit even though in August
2002, complainant was informed that he could not start training and
performing in the Telecommunications Maintenance Operation Unit because
the Communications Unit was short of staff; (3) in 2002, the agency could
not locate complainant's individual development plan; (4) in January 2003,
a Communications Unit employee was sent for an academy school course even
though complainant was previously denied such training; (5) in January
2003, a Communications Unit employee was offered the opportunity to take
a training class and complainant was not offered such an opportunity;
and (6) complainant was not selected for a temporary promotion to the
position of Communications Manager.
By decision dated July 2, 2003, the agency dismissed claims 1-5 of the
complaint pursuant to 29 C.F.R. �1614.107(a)(2) on the grounds of untimely
contact of an EEO Counselor. The agency determined that nothing in the
complaint indicates that complainant was subjected to any discriminatory
action after November 2002, and complainant did not initiate contact
with an EEO Counselor until March 5, 2003, after the expiration of the
45-day limitation period for contacting an EEO Counselor. The agency also
determined that claim (6) concerning complainant not being selected for
a temporary promotion to the Communications Manager position failed to
state a claim pursuant to 29 C.F.R. �1614.107(a)(1) because complainant
argued that nepotism and cronyism were involved, neither of which are
covered by federal anti-discrimination statutes.
On appeal, complainant maintains that when he contacted the agency's
Office of the Inspector General in November 2002, he was informed that
he could not file an EEO complaint if he utilized the Office of the
Inspector General. Complainant states that he was instructed to file a
charge with the Office of the Inspector General, but that he subsequently
received a letter from the Office of the Inspector General stating that
the issues were not appropriate for an inquiry by the Office of the
Inspector General.
With regard to the question of whether complainant's EEO contact was
timely for claim 1, we observe that in 1999, complainant's on the
job packages were lost and complainant was required to again prepare
the on the job packages. Complainant did not initiate contact with
an EEO Counselor until March 5, 2003. Complainant has not submitted
adequate justification for an extension of the 45-day limitation period.
Accordingly, the agency's dismissal of claim (1) on the grounds of
untimely EEO contact was proper and is AFFIRMED.
With regard to claim 2, complainant stated that he was not allowed to
leave the Communications Unit to start training and performing in the
Telecommunications Maintenance Operation Unit in August 2002, and that
he did not suspect discrimination until another employee was allowed to
move from the Communications Unit to the Automation Unit in October 2002.
As for claim 3, complainant stated that the agency was unable to locate
his individual development plan in 2002. We observe that a specific
date must be ascertained with regard to when this incident occurred.
We further observe that complainant claims that the Office of the
Inspector General informed him in November 2002, that he could not
pursue an EEO claim if he utilized the Office of the Inspector General.
The record lacks sufficient information concerning this issue and
therefore we are unable at this juncture to make a finding with regard
to the timeliness of complainant's EEO contact for claims 2 and 3.
As for claims 4-5, we note that complainant claimed that an individual
received training in January 2003, in areas where he had previously been
denied training. In light of complainant's EEO contact on March 5, 2003,
a more precise determination must be made as to when in January 2003,
complainant learned that the cited employee received the alleged training.
Accordingly, the agency's dismissal of claims 2-5 on the grounds of
untimely EEO contact is VACATED. These claims are REMANDED for further
investigation pursuant to the Order below.
With respect to claim 6, we find that complainant has stated a claim.
The agency dismissed this claim based on the rationale that complainant
was claiming favoritism and cronyism caused him not to receive the
temporary promotion. However, it is evident that complainant's claims
of favoritism and cronyism are intertwined with his discrimination claim
since complainant claims that Hispanic employees have received more
favorable treatment and two Hispanic individuals received the temporary
promotions. Accordingly, we find that the agency's dismissal of claim 6
on the grounds of failure to state a claim was improper and is REVERSED.
This claim is REMANDED for further processing pursuant to the Order below.
The agency's dismissal of claim 1 is AFFIRMED. The agency's dismissal of
claims 2-5 is VACATED and claims 2-5 are REMANDED for further processing
pursuant to the Order below. The agency's dismissal of claim 6 is
REVERSED and claim 6 is REMANDED for further processing pursuant to the
Order below.
ORDER
The agency shall obtain a statement from the official with the Office
of the Inspector General who complainant claims told him that he could
not utilize the EEO process if he sought redress through the Office of
the Inspector General. The agency shall ascertain from this official
whether this information was conveyed to complainant and whether he
advised complainant not to pursue the EEO process or otherwise made any
comments to complainant about the merits of his complaint. The agency
shall obtain from complainant a specific date for the incident cited in
claim 3. With regard to claims 2, 4, and 5, complainant shall specify
the dates when the incidents occurred and when he realized that he
had been subjected to discrimination. Within 60 days of the date this
decision becomes final, the agency shall issue a letter to complainant
accepting claim(s) from the complaint for investigation and/or issue
a new decision dismissing claim(s) from the complaint. A copy of the
agency's letter accepting claim(s) from the complaint for investigation
or a copy of the new decision dismissing claim(s) from the complaint
must be sent to the Compliance Officer as referenced herein.
The agency is ordered to process claim 6 in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the complainant that it
has received claim 6 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
March 12, 2004
__________________
Date