07A40006_r
04-23-2004
Danny M. Williams, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Danny M. Williams v. Department of Justice
07A40006
April 23, 2004
.
Danny M. Williams,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A40006
Agency No. P-2002-0249
Hearing No. 130-A3-8096X
DECISION
Concurrent with its July 22, 2003 final order, the agency filed the
captioned appeal which the Commission hereby accepts pursuant to 29
C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) summary judgment decision finding
no discrimination regarding the captioned complaint, on the grounds that
the Commission lacked jurisdiction.
Complainant, a Food Service Administrator employed at the agency's
Federal Correctional Institution, Yazoo City, Mississippi facility,
filed a formal EEO complaint with the agency on July 12, 2002. Therein,
complainant claimed discrimination and harassment on the bases of race
(African-American) and sex (male) when:
(1) In or about December 2001, complainant received a written reprimand
for allegedly failing to include negative comments in a subordinate's
performance log;
On February 25, 2002, complainant was placed on a performance improvement
plan (PIP);
On May 23, 2002, complainant received low quarterly performance log
ratings;
On or about June 18, 2002, agency management recommended that
complainant be removed from his position as Food Service Administrator;
and
On June 25, 2002, complainant was not permitted to attend a training
session for departmental managers.
By notice dated August 22, 2002, the agency accepted claims (3), (4),
and (5) for investigation. The agency dismissed claims (1) and (2) on
the grounds of untimely EEO Counselor contact. Regarding claims (1) and
(2), the agency determined that the time limit could not be waived under
the continuing violation theory, and that claim (2) could be dismissed
on the grounds that it merely constituted a proposed agency action.
The agency's notice informed complainant that the dismissal of claims
(1) and (2) was not immediately appealable to the Commission.
Thereafter, complainant requested that the formal complaint be amended
to include the following claim:
Whether complainant was discriminated on the bases of race (black),
sex (male), and retaliation for engaging in prior EEO activity, when,
on September 8, 2002, the agency demoted complainant to a GS-11 grade
level Training Instructor.
The agency accepted this claim for investigation, by notice dated
October 23 ,2002. At the conclusion of the investigation, complainant
was provided a copy of the investigative report and requested a hearing
before an AJ.
Upon determining that there was no genuine dispute as to a material
fact, and no genuine issue as to credibility, the AJ issued a summary
judgment decision in favor of the agency, finding that the record failed
to support complainant's claims of discrimination and harassment, on
the bases of race, sex, and retaliation.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by issuing a decision in this matter
because the amended issue, concerning complainant's demotion, made the
case a mixed case complaint. The agency argues that the AJ should have
instead remanded the case to the agency to issue a decision, and provide
complainant with appeal rights to the Merit System Protection Board
(MSPB). The agency also argues that complainant's other claims are
inextricably intertwined with his demotion, such that the MSPB would
have jurisdiction over the entire complaint.
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person
may elect to initially file a mixed case complaint with an agency or may
file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. �
1201.151, but not both. 29 C.F.R. � 1614.302(b).
A demotion, such as the one at issue here, is a claim over which the MSPB
typically has jurisdiction. We determine that the agency's October 23,
2002 notice accepting complainant's demotion claim as an amendment to his
complaint, did not advise complainant of his election rights pursuant to
29 C.F.R. � 1614.302(b). Moreover, we find that the agency raises the
jurisdictional issue for the first time on appeal, after the AJ rendered
a decision on the complaint. It is well settled that the Commission
may properly assume initial jurisdiction of a mixed case matter when it
becomes so firmly enmeshed in the EEO process that it would unduly delay
justice and create unnecessary procedural complications to remand it to
the MSPB. See Harrell v. Department of Veterans Affairs, EEOC Request
No. 05940652 (May 24, 1995).
Under the circumstances of this case, we find that the demotion issue is
so firmly enmeshed in the EEO process that a remand to the MSPB would be
improper, and that it would better serve the interests of administrative
economy to address the disposition of the complaint here on appeal.
Dismissal of claims (1) and (2)
The Commission notes that neither the AJ's decision nor the agency's
final order addresses the dismissal of claims (1) and (2). Because a
final action has been issued on the complaint, we find that we may now
properly address the dismissal of claims (1) and (2) on appeal.
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
According to the record, complainant contacted an EEO Counselor on
June 11, 2002, which is beyond the 45-day time limit as to claim (1)
(December 2001) and claim (2) (February 25, 2002). Complainant did
not claim that he was unaware of the time limit, or otherwise set
forth circumstances to justify waiving the time limit. Accordingly,
we find that claims (1) and (2) were properly dismissed on the grounds
of untimely EEO Counselor contact.<1>
AJ's Finding of No Discrimination
Review of the record reflects that neither party disputes the AJ's
determination to issue a summary judgment decision in this matter, or the
ultimate determination that complainant failed to prevail in his claim
of discrimination and harassment. Based on our review of the record on
appeal, we concur with the AJ's determination that summary judgment was
appropriate in this case, and that the preponderance of the evidence of
record does not establish that discrimination or actionable harassment
occurred as claimed by complainant.
Conclusions
Accordingly, for the reasons set forth above, we VACATE the agency's
final action in this matter, and we AFFIRM the AJ's decision.
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
April 23, 2004
__________________
Date
1Because we are affirming the agency's
dismissal of claim (2) on the grounds of untimely EEO Counselor contact,
we will not address the agency's alternative grounds for dismissal.