0120121242
01-18-2013
Frank L. Kelly, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Frank L. Kelly,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121242
Agency No. ARCEME11MAY02237
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated August 31, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Civil Engineer at the Agency's U.S. Army Corps of Engineers facility in the Iraq Area Office. On July 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (unspecified1) when:
1. In January 2011, the Chief of Construction Operations Division, Middle East District, (Chief) informed Complainant he would not be assigned to the Iraq Area Office Engineer position located in Baghdad;
2. In November 2010, the Deputy of Program & Project Management within the Gulf Region District informed Complainant that his request for a new tour extension in the position as Northern Area Office Engineer, Iraq, was cancelled; and
3. In December 2010 a Human Resources Specialist notified Complainant he would not be receiving a relocation bonus, and in January 2011, the Chief confirmed the Human Resource Specialist's claim.
The Agency dismissed the claims for untimely EEO Counselor contact. The Agency found that Complainant was notified in November 2010 that his request for a new tour extension was cancelled, he was notified in January 2011 that he would not be assigned to the Iraq Area Office Engineer position, and he was notified in both December 2010 and again in January 2011 that he would not be getting a relocation bonus. Therefore, the Agency concluded, his May 23, 2011 Counselor contact was untimely.
ANALYSIS AND FINDINGS
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.
Complainant stated in his Formal Complaint that "On November 11, 2010" he sought confirmation regarding the person who would replace him as Northern Area Engineer and that "[o]n or about this date . . . [the Chief of Construction] then informed me that the approval of my new 6 month tour was cancelled. I asked for confirmation of the cancellation and needless to say I was not provided a copy." Formal Complaint Addendum, p.2. With regard to the Iraq Area Office Engineer position, Complainant stated in his informal complaint that he learned of the cancellation in early January 2011. See Informal Complaint, p. 2. Accordingly, we find that Complainant's May 23, 2011 EEO Counselor contact was untimely with regard to claims 1 and 2 since his Counselor contact was beyond the 45-day limit.
With regard to claim 3, however, we find that his Counselor contact was timely. Complainant contends on appeal that relocation bonuses are paid at the end of an expiring tour and the beginning of a new tour and that his tour ended on June 18, 2011 and so his Counselor contact was therefore not untimely. We note that the Commission has long held that, in the case of a personnel action such as the instant complaint, complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the effective date of the action, which according to Complainant was on or about June 18, 2011. Furthermore, had Complainant contacted an EEO Counselor about the proposed non-payment of his bonus when he was first told about it in December 2010 or January 2011 the complaint would most likely have been dismissed pursuant to 29 C.F.R. � 1614.107(a)(5) on the grounds that it was a proposed action.
On appeal, the Agency argues that, in addition to untimely EEO Counselor contact, the claim should be dismissed for failure to state a claim because Complainant "failed to articulate a Title VII basis through the EEO complaint process" in either his Formal or Informal Complaints. See Agency Appeal Brief, pp. 5-6. We note, however, that while Complainant did not identify his race, he ticked off the box marked "race" on the Formal Complaint Form DA 2590. Furthermore, the Agency's Dismissal identified his race as African American and Complainant in his own Appeal Brief did not indicate that he disagreed with such an identification. We find that Complainant's ticking of the "race" box on his Formal Complaint Form, as well as his claim that he was denied a relocation bonus, are sufficient to meet the threshold of stating a claim of discrimination based on race.
CONCLUSION
Following a thorough review of the record, and for the reasons provided above, we find that Claims 1 and 2 should be dismissed for untimely EEO Counselor contact. We further find that Complainant's Counselor contact was timely with regard to Claim 3, and further, that Claim 3 states a valid claim of discrimination based on race. We therefore AFFIRM the Dismissal in part and REVERSE in part, and we REMAND claim 3 for additional processing.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 18, 2013
__________________
Date
1 The Dismissal indicates that Complainant's race is African American. However on appeal, the Agency notes that Complainant did not specify his race.
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0120121242
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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