0120111137
01-12-2012
Don Drennon Gala, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Don Drennon Gala,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120111137
Agency No. BOP-2010-0355
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated October 28, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
retired Agency employee.1 On April 20, 2010, he filed a formal complaint
alleging that the Agency subjected him to discrimination based on reprisal
for prior protected EEO activity under Title VII and the Rehabilitation
Act when he learned on or about January 28, 2010, that a Supervisory
Attorney in the Agency’s Labor Law Branch around April 2004 made false
statements to the Agency’s Office of Internal Affairs (OIA), and as a
result he was prevented from receiving a transfer within the Bureau of
Prisons (BOP) and a position inside or outside of the Agency.2
On July 27, 2010, an Agency EEO officer via email requested Complainant
to provide the title, vacancy announcement numbers, and dates he
learned that he was not selected for positions. She advised that
failure to do so within 15 calendar days from receipt of the request
could result in the dismissal of his complaint for failure to provide
relevant information. 29 C.F.R. § 1614.107(a)(7).
In his same day response, Complainant elaborated that any law enforcement
agency considering his applications would inquire if an investigation
was pending, and would have discovered the pending “OIG” case, and
no further action would be considered, and within the BOP, there would
be an inquiry of pending disciplinary actions and OIA investigations.
Complainant wrote that for medical reasons he needed at least 30 to 45
days to give identifying information on the positions.
On July 29, 2010, the EEO officer granted Complaint’s extension
request to August 26, 2010, via email. She warned that if the requested
information was not provided by then, his complaint may be dismissed.
On July 31, 2010, Complainant replied with a list of six positions.
Five were titled Criminal Investigator, and one Deportation Officer.
For each position, he gave vacancy identification numbers that were each
six numerical digits long. One had a closing date in 2005, one in 2007,
and the rest in 2006. In her August 12, 2010 response, the EEO officer
wrote that vacancy announcement numbers are usually more detailed,
and asked if they were complete.
In his August 12, 2010 reply, Complainant wrote that the information
he gave was taken from his USAJobs account. On August 18, 2010, the
EEO officer via email requested Complainant to provide the complete
vacancy announcement numbers for each position, explaining the vacancy
identifications did not correspond to Department of Justice announcement
numbers. She gave a sample number format. She asked Complainant to
print the information from his USAJobs account for each of the six
positions and, if possible, provide their actual vacancy announcements.
The EEO officer gave Complainant 15 days from his receipt of the email
to provide the requested information, and warned that failure to do so
could result in the dismissal of his complaint. On August 18, 2010,
Complainant requested 60 days to respond, writing he needed more time
due to his disability. On the same day, the EEO officer gave Complainant
an extension to September 17, 2010.
In its FAD, the Agency dismissed the complaint for failure to respond
to a request for information and failure to state a claim. On failure
to respond, the Agency recounted the above, and found Complainant did
not provide the requested information. On failure to state a claim, the
Agency reasoned that because of the broad nature Complainant’s claim
and his failure to identify sufficient information about the positions
for which he was not selected, the information he gave was too vague
to investigate. It explained that the vacancy numbers Complainant gave
do not appear to be complete nor indicate which component of the Agency
they the positions were in. It explained that without complete vacancy
announcement numbers, an EEO investigator would be unable to determine
which servicing Human Resources group to contact in order to obtain the
correct vacancy files.
On appeal, Complainant submits 15 positions for which he applied and
was not selected, some with multiple slots, which he writes he provided
the EEO officer on October 11, 2010. He writes that he applied for
most of them in 2007. Based on the vacancy announcement numbers,
and in one instance Complainant’s information, many were in outside
agencies, i.e., Housing and Urban Development, Health and Human Services,
and Department of Veterans Affairs. Some were in BOP, and others in
unidentified agencies. Complainant explains that he delayed providing
the above information because of his disability, and that his prior
responses provided relevant information. Complainant contends that the
Supervisory Attorney provided the false information to OIA in reprisal
for EEO activity, and this blocked him from being transferred or selected.
ANALYSIS AND FINDINGS
As an initial matter, we take administrative notice that on September 24,
2009, Complainant filed civil action complaint 1:09-cv-252 in the United
States District Court for the Eastern District of Tennessee, alleging
that he was denied the reasonable accommodation of a transfer since 2003
in violation of Title VII and the Rehabilitation Act. On January 15,
2010, the Court ordered that the case be transferred to the United States
District Court for the Western District of Wisconsin. Court electronic
docketing records do not show what occurred thereafter.
The regulation found at 29 C.F.R. § 1614.409 provides that the filing
of a civil action "shall terminate Commission processing of the appeal."
Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as to prevent a Complainant from simultaneously pursuing
both administrative and judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent or conflicting
decisions, and in order to grant due deference to the authority of the
federal district court. See Stromgren v. Dep’t of Veterans Affairs,
EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep’t of Justice,
EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal
Serv., EEOC Request No. 05880114 (October 25, 1988). Accordingly,
Complainant’s denial of transfers claim is hereby dismissed. See 29
C.F.R. § 1614.409.
We add that Complainant untimely initiated EEO contact on his denial of
transfers claim. An aggrieved person must seek EEO counseling within
45 days of the date of the alleged discriminatory action, or in the
case of a personnel action, within 45 days of the effective date of
the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit
to seek EEO counseling shall be extended when an individual shows he did
not know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2).
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.
Complainant initiated EEO counseling on March 5, 2010, far more than
45 calendar days after he suspected discrimination on the denial of
transfers claim, as evidenced by the above civil action. We also find
that Complainant was aware of the 45 calendar day time limit to initiate
EEO counseling, as evidenced by his filing multiple prior EEO complaints.
They regarded denial of transfers, non-selections, and other matters.
The Agency properly dismissed the claim regarding the non-selections.
First, to the extent that the non-selections concern positions
outside the Department of Justice (DOJ), the complaint fails to state
a claim against DOJ because DOJ did not make those selection decisions.
29 C.F.R. § 1614.107(a)(1). Further, despite repeated Agency
requests with warnings that failure to provide the requested information
could result in the dismissal of his complaint, and two extensions,
Complainant failed to provide sufficient identifying information on the
six non-selections he raised with the Agency to allow an investigation.
A review of the list does not reveal which Agencies, or parts of DOJ, the
positions were located. On appeal, Complainant listed 15 non-selections.
This was too late since it was after the time limits for the warnings
expired. Complainant’s explanation that he delayed because he has a
disability is not persuasive. He submits no information showing that
he was incapacitated from making the time limit. Accordingly, the
Agency’s dismissal of the non-selections claim for failure to state
a claim and failure to provide relevant information in response to the
Agency’s request is affirmed. 29 C.F.R. 1614.107(a)(1) and (a)(7).
To the extent Complainant is independently alleging that he was
discriminated against when the Supervisory Attorney made false claims
against him in April 2004, prompting an OIA investigation, we find
Complainant did not timely initiate EEO counseling on this matter.
While Complainant wrote in a July 27, 2010, email to the EEO officer
that he did not learn of the Supervisory Attorney’s accusations until
2010, he also wrote therein that he learned of the OIA investigation
in 2007, albeit he was not given any information on the accusations
since it was an ongoing investigation. Complainant is contending that
the OIA investigation itself blocked him from being transferred and
getting selected, and he was aware of the OIA investigation by 2007.
Accordingly, his claim about the OIA investigation is dismissed.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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 12, 2012
__________________
Date
1 In a civil action complaint 1:09-cv-00252 in the United States District
Court for the Eastern District of Tennessee, Complainant wrote that he
retired on January 3, 2008.
2 The Agency did not define the complaint to include the blocked transfers
claim, albeit this was part of the complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111137
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111137