01A41403_r
01-26-2005
Clayton S. Kellum, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Clayton S. Kellum v. Department of Justice
01A41403
January 26, 2005
.
Clayton S. Kellum,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A41403
Agency No. P-2003-0219
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated December 3, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The record reveals that in his complaint,
complainant alleged that he was subjected to discrimination on the bases
of age and reprisal for prior EEO activity when:
The agency permitted Person A to remain as an Intelligence Operations
Officer (IOO) for USP Atlanta, which resulted in two GS-12 IOOs for the
office thereby diluting complainant's duties as Intelligence Operations
Officer and limiting complainant's advancement opportunities to the
next grade.
The agency failed to comply with its December 24, 2002 final order fully
implementing the November 5, 2002 decision of an EEOC Administrative Judge
(AJ).
The agency selected younger individuals for �trainers for trainers.�
In its final decision, the agency stated that complainant failed to
state a claim of unlawful discrimination, which caused him harm, absent
his claim that the agency failed to comply with the AJ's November 5,
2002 Order. The agency dismissed issue (1) pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency noted that
in his formal complaint, complainant stated that on February 3, 2003,
he became aware that he would be one of two IOOs at the USP, Atlanta.
The agency noted that complainant did not contact an EEO Counselor
with regard to this allegation until May 9, 2003, which was beyond the
applicable limitations period. The agency noted that in a September
15, 2003 letter, complainant stated that his delay was due to pursuing
the matters through an internal appeal process. The agency found that
complainant's reason for exceeding the time period does not warrant
an exception to the applicable limitations period. Additionally, the
agency dismissed issue (2) pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(8), on the grounds that it alleged dissatisfaction
with the processing of a previously filed complaint. Finally, the agency
dismissed issue (3) pursuant to 29 C.F.R. � 1614.107(a)(2), for failure
to bring this issue to the attention of an EEO Counselor and noted that
this issue is not like or related to a matter that has been brought to
the attention of a counselor. Alternatively, the agency dismissed issue
(3) pursuant to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate.
The agency stated that it sent complainant an August 5, 2003 letter
requesting clarification of complainant's vague allegation that younger
individuals were selected for several �trainers for trainers.� The agency
stated that complainant's September 15, 2003 response does not address
the agency's request for information concerning his vague description
of this issue.
On appeal, complainant states that he did reply to the agency's August
5, 2003 request for clarification. He states that his response was
made on September 15, 2003. With regard to the agency's dismissal of
his complaint for untimely EEO Counselor contact, complainant states
that the agency should be barred by the doctrine of equitable estoppel
since agency management officials initially assured complainant that
they were looking into the situation and would respond in a short time.
Complainant argues that he �gave the [a]gency the benefit of the doubt
that they were making a good faith effort to resolve the problem� and
explains that once he received constructive notice through a memorandum
that the agency intended to circumvent his ability to perform his duties
he sought relief via the EEOC process.
In response to complainant's appeal, the agency claims that complainant
is not entitled to an agency investigation and administrative hearing
based upon his allegation that the agency is not complying with its
December 24, 2002 final order. The agency noted that on February 3,
2003, complainant sent a letter to the agency's Associate General Counsel
complaining that another individual was also acting as an IOO at the
institution where he worked and that this was retaliation. The agency
states that EEOC regulations do not allow complainants to file retaliation
claims to address compliance arising from a previous complaint. Thus,
the agency argues that this issue was properly dismissed. Additionally,
the agency states that complainant's noncompliance allegation, issue
(2), is untimely because complainant failed to notify the EEO Director
in writing within 30 days of the alleged noncompliance. Alternatively,
the agency states that complainant failed to make timely counselor contact
with regard to this issue, as he was aware of the incident as early as
February 3, 2003; however, he did not initiate EEO Counselor contact
until May 9, 2003. The agency also states that outside of the alleged
noncompliance issue, complainant has failed to state a claim for relief.
Finally, the agency reiterates its position that it properly dismissed
the complaint based upon complainant's failure to provide an adequate
response to its requests for further information.<1>
The record contains complainant's February 3, 2003 letter to the
Associate General Counsel, in which he requests the second IOO be
removed from his office. He states that of the twelve IOO work sites,
his is the only one with two IOOs. Complainant claims that this action
is retaliation and seen �as an attempt to frustrate and circumvent [his]
ability� to perform his duties.
The record contains the agency's August 5, 2003 letter seeking
clarification of complainant's complaint. The letter noted that in his
complaint, complainant indicated that he was informed that there was
an additional IOO on February 3, 2003; however, he did not initiate EEO
Counselor contact within the applicable limitations period. The agency
requested a written explanation why complainant did not contact the
EEO Counselor within forty-five days of the alleged discrimination.
Additionally, in its letter the agency noted that complainant indicated
that he was not selected for several training for trainer opportunities
because of age and reprisal. The agency requested complainant provide his
age, the announcement numbers for the positions at issue, and indicate
when he was notified of the non-selections. The agency also requested
complainant identify any other incidents of alleged discrimination.
The record reveals that complainant responded in a September 15,
2003 letter. In his response, complainant admits that although he was
�aware of a problem, he was not aware nor did he suspect that management
had no interest in resolving some technical problems concerning his
present position until approximately one week before he filed the instant
matter.� He states up until one week prior to filing, �management gave
the appearance that they were interested in addressing the situation
and resolving the problem.� He claims �he did not have all the facts
until the Captain informed him in writing that the Intelligence Research
Specialist was not going to be allowed to do his job under the MOU and
subsequent memorandum.�<2>
Upon review of the record, we find that issue (1) was properly dismissed
for untimely EEO Counselor contact. The record reveals that complainant
was aware of the alleged discriminatory incident at the latest on
February 3, 2003; however, he failed to initiate EEO Counselor contact
until May 9, 2003, which is beyond the applicable limitations period.
Although complainant attempted to resolve the issue of the existence of
two IOOs through management, the Commission has held that the use of an
agency's administrative procedure does not toll the limitations period
for initiating EEO Counselor contact. On appeal, complainant has failed
to provide adequate evidence to warrant an extension of the applicable
limitations period.
With respect to issue (2), we note that complainant is alleging
noncompliance with the agency's December 24, 2002 final order. EEOC
Regulation 29 C.F.R. � 1614.504(a) provides that where a complainant
believes the agency has failed to comply with the terms of its final
action, the complainant shall notify the agency's EEO Director, in
writing, of the alleged noncompliance within thirty calendar days of
when the complainant knew of the noncompliance. In the present case, we
find complainant's allegation of noncompliance was untimely raised since
complainant knew of the alleged noncompliance at the latest on February
3, 2003, but failed to notify the agency's EEO Director, in writing, of
the alleged noncompliance within thirty days. Furthermore, complainant
can not raise a separate claim of discrimination alleging noncompliance
with an agency decision. Such a claim fails to state a claim.
Additionally, we find that issue (3) was properly dismissed for failure
to state a claim. With regard to issue (3), in his formal complaint
complainant stated that the agency selected younger individuals for
�trainers for trainers.� Despite the agency's attempts to obtain further
clarification on this issue, complainant did not provide any further
information regarding this claim. Thus, we find issue (3) was properly
dismissed for failure to state a claim in that complainant failed to
identify a specific harm or loss to a term, condition, or privilege
of employment.
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED.
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 (S0900)
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. 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
January 26, 2005
__________________
Date
1It is noted that complainant submitted
a Response to the Agency's Statement via facsimile on April 12, 2004.
EEOC Regulations specify that any statement or brief submitted in support
of complainant's appeal must be submitted to the Commission within
thirty days of filing the notice of appeal. 29 C.F.R. � 1614.403(d).
As complainant's April 12, 2004 response was submitted more than thirty
days after the filing of the appeal, it will not be considered in this
decision.
2The record reveals that the agency issued a second request for additional
information on September 15, 2003, presumably prior to its receipt of
complainant's response dated the same date. The record shows that
complainant re-sent his September 15, 2003 response on December 18,
2003, reiterating his position regarding the timeliness of his claims.