0520060535
11-16-2006
Grant M. Stephens, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Grant M. Stephens,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Request No. 05200605351
Request No. 05A60068
Appeal No. 01A53553
Agency No. ARHQAMC04FEB010
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decisions in
Grant M. Stephens v. Department of the Army, EEOC Request No. 05A60068
(January 19, 2006), affirming, Kalinich, et al. v. Department of the Army,
EEOC Appeal No. 01A51825, et al. (August 25, 2005). EEOC Regulations
provide that the Commission may, in its discretion, grant a request
to reconsider any previous Commission decision where the requesting
party demonstrates 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. See 29 C.F.R. � 1614.405(b). For the
foregoing reasons, the Commission reopens the previous decision on its
own motion and vacates the agency's decision.
BACKGROUND
In 1999-2000, the agency implemented a reduction-in-force (RIF) in
preparation for privatization of its Logistics Systems Support Center
(LSSC). Employees who were involuntarily separated had the options of a
comparable job with the contractor for at least three years, transfer
to another government position (if available), or retirement. Due to
the RIF, Conrad Lohutko, an agency employee, contacted the EEO office
on May 24, 1999. Subsequently, he filed a class complaint against the
agency on behalf of himself and his coworkers that alleged, among other
things, discrimination based on age with respect to the abolishment
of their jobs. In support of the class complaint, 80 statements were
submitted by the purported class members. On November 13, 2001,
an EEOC Administrative Judge (AJ) issued a decision rejecting the
class complaint for certification. The AJ found that the requirement
of adequacy of representation had not been satisfied. On appeal, in
Lohutko v. Department of the Army, EEOC Appeal No. 01A22022 (November 14,
2003), the Commission affirmed the AJ's decision, and in EEOC Request
No. 05A40278 (December 30, 2003), Mr. Lohutko's request to have the
initial decision reconsidered was denied.
Following the Commission's decisions, on January 27, 2004, an EEO official
informed the affected employees, by memorandum, that EEO representatives
would come to the LSSC, located in St. Louis, Missouri, to discuss their
"rights and responsibilities and how to proceed" if there was a desire
to proceed with individual complaints. At the meeting, which was held
on February 10, 2004, EEO representatives held a briefing for many of
the employees and collected numerous informal individual complaints.
Thereafter, individuals filed individual formal complaints alleging
discrimination due to the agency's actions. The agency dismissed these
complaints for, among other things, failure to contact an EEO Counselor
in a timely manner, pursuant to 29 C.F.R. �1614.105(a)(1).
The individuals appealed the agency's decisions to the Commission.
In Kalinich, et al. v. Department of the Army, EEOC Request Nos. 05A60063,
et al. (January 19, 2006), affirming, EEOC Appeal No. 01A51825, et
al. (August 25, 2005), the Commission found that the agency improperly
dismissed the complaints of 43 complainants for untimely EEO Counselor
contact, and it remanded said complaints to the agency for processing.
The Commission, citing its decision in Mole v. Department of the
Air Force, EEOC Request No. 05910578 (September 25, 1991), held that
the commencement of the class action by Mr. Lohutko, the class agent
in Lohutko v. Department of the Army, suspended the time limitation
periods for asserted class members, i.e., those who would have been
parties if the class complaint had been certified. Thus, upon issuance
of a final administrative ruling on the class complaint, we determined
that the time limitations period resumed. Mole v. Department of Air
Force, supra. Applying these principles, we found that complainants who
contacted an EEO counselor within 45 days of the ultimate decision in
Lohutko, i.e., on or before February 13, 2004, were timely pursuant to
EEOC regulations. See 29 C.F.R. �1614.105(a)(1); Kalinich, supra.
Complainant, however, was not among the 43 complainants whose contact
the Commission found timely. Instead, the Kalinich decision excluded
complainant from said group because complainant contacted an EEO counselor
on February 18, 2004, five days after the 45 day time limit. The decision
found that complainant attended the February 10, 2004 meeting, but did not
present adequate justification for tolling the time limitations period.
Complainant then filed a request to reconsider (RTR). Complainant
asserted that he did not attend the February 10, 2004 meeting or have
knowledge of it, because his computer malfunctioned on January 27,
2004. He further averred that he was ill, away, or worked at home through
February 17, 2004, and in support of his contentions, he submitted his
time records. Complainant asserted that, like the two complainants for
whom the time limitation period was extended (RZ and JV), he was not
present in the workforce when information was distributed. The agency
argued that complainant's complaint was properly dismissed for untimely
EEO contact and that his justification was not adequate.
In EEOC Request No. 05A60068 (January 19, 2006), we determined that
complainant's assertions were in contravention of his brief on appeal,
wherein he indicated that he attended the February 10, 2004 meeting, and
that he had "received/was made aware of an e-mail." With regard to time
sheets he submitted to establish his absence, we found that "they were
not accessible or easily understood, and only portions were annotated
and symbols/codes were not explained; also, it is not clear that they
fully corresponded to his recitation of his absences." We concluded
that complainant failed to establish that he was not present in the
work place such that the time limitations period should be extended.
Complainant's RTR was denied.
On March 2, 2006, complainant requested that the Commission reconsider
its prior decision on its own motion because we denied his RTR due to
two errors in the initial brief filed in his appeal. Specifically,
that brief stated that he received or was made aware of an e-mail dated
January 27, 2004, concerning a meeting to be held on February 10, 2004,
and that he was in attendance at that meeting. He explains that he and
his attorney, who represents approximately 37 former employees of the
LSSC, failed to recognize these significant errors, and that his RTR
contained the corrected facts. To support his contentions, he provides,
among other things: affidavits attesting to the facts as presented on RTR;
time and attendance records for January 31 though February 20, 2004; an
e-mail from an agency official showing his registration for a conference
from February 7 through 14, 2004; an e-mail, dated December 18, 2003,
evidencing difficulties with the e-mail system; and a letter from his
supervisor attesting to his absence from the office from February 2
through 18, 2004.
In response, the agency asserts that we should not reopen the case on
our own motion because, even assuming arguendo that complainant did not
receive the e-mail and did not attend the February 10, 2004 meeting,
he still failed to present adequate justification for tolling the time
limit identified by the Commission. Citing to Kalinich, the agency
argues that the date of the meeting was not dispositive, as we rejected
the position that the "45-day time limitation period was not triggered
until February 10, 2004, when the complainants were informed of the
final disposition of Mr. Lohutko's appeal."
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint or a portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved
person is required to initiate contact with an EEO counselor within 45
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within 45 days of the effective date of the
action. See 29 C.F.R. � 1614.105(a)(1). 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.
Also relevant to the present case is the Commission's holding in Kalinich,
where we found that, upon issuance of a final administrative ruling
on the Lohutko class complaint, the time limitations period resumed,
and complainants who contacted an EEO counselor within 45 days of the
ultimate decision in Lohutko, i.e., on or before February 13, 2004,
were timely pursuant to EEOC regulations. See 29 C.F.R. �1614.105(a)(1);
Kalinich, supra.
Here, complainant was an asserted class member in the Lohutko class
complaint. However, he did not contact an EEO Counselor until February
18, 2004, which is five days later then the February 13, 2004 limitations
period. Complainant argues that we should toll the limitations period
because he was unaware of the Lohutko decision, unaware of the February
10, 2004 meeting, did not attend the February 10, 2004 meeting, and
did not learn of his ability to initiate an individual complaint until
February 17, 2004. Complainant presents evidence which the Commission
finds persuasive, including his time and attendance records for January
31 though February 20, 2004; an e-mail from an agency official showing
his registration for a conference from February 7 through 14, 2004;
and a letter from his supervisor attesting to his absence from the
office from February 2 through 18, 2004. This evidence fully supports
complainant's contention that he was not in the office during the relevant
time, and acted with due diligence once he was made aware of the final
administrative ruling on the Lohutko class complaint. The Commission is
satisfied that complainant has established that he was unable to contact
an EEO counselor in a timely manner because he never received the January
27, 2004 e-mail regarding the February 10, 2004 meeting; he was out of the
workplace when the February 10, 2004 meeting took place; he did not have
access to the same information provided to other asserted class members;
and he acted to preserve his rights by seeking EEO counseling once aware
of the ultimate decision in Lohutko. Therefore, the Commission will
toll the time limitation period with regard to complainant's complaint.
See 29 C.F.R. � 1614.604 (c).
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. United
States Postal Service, EEOC Request No. 05900850 (September 7, 1990). In
this matter, the Commission finds that the complainant's request does
not meet the regulatory criteria of 29 C.F.R. � 1614.405(b), in that the
request does not identify a clearly erroneous interpretation of material
fact, as presented at the time of the appeal, or law. Neither does the
request show that the underlying decision will have a substantial impact
on the policies, practices or operation of the agency. The Commission,
however, upon our own motion and in the interests of fairness, reopens
the previous decision and vacates the agency's decision dismissing
complainant's complaint.
CONCLUSION
The decision in Grant M. Stephens v. Department of the Army, EEOC
Request No. 05A60068 (January 19, 2006) is reopened and the agency's
decision is vacated. Complainant's complaint is returned to the agency
for processing. There is no further right of administrative appeal on
the decision of the Commission on a request for reconsideration. The
agency is directed to comply with the order, below.
ORDER
The agency is ordered to process the remanded complaint (Agency
No. ARHQAMC04FEB010) in accordance with 29 C.F.R. � 1614.108. Within
thirty (30) calendar days of the date this decision is issued, the
agency shall acknowledge to the complainant that it has received the
remanded complaint. Within one hundred fifty (150) calendar days of the
date this decision is issued, the agency shall provide to complainant,
and his representative, if any, a copy of the investigative file and
provide complainant notice of rights, unless the matter is otherwise
resolved prior to that time. If 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 copies
of the notice that transmits the investigative file and notices of rights
must be sent to the Compliance Officer as referenced below.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
______11-16-06____________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
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05A60535
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520060535