01A20944_r
06-27-2002
John J. Cuite, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
John J. Cuite v. Department of the Army
01A20944
June 27, 2002
.
John J. Cuite,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A20944
Agency No. BOAWFO0108B0010
DECISION
Upon review, the Commission finds that two of four claims raised in the
instant complaint were improperly dismissed.
On April 11, 2001, complainant sought EEO counseling claiming that he
had been discriminated against on the basis of age when:
(a) during the fall of 1999, he was verbally detailed from his position
of Director of Personnel and Community Activities, GS-301-13 and on
November 19, 2000, finally reassigned to the position of Public Works
Management Specialist, GS-301-13;
(b) on November 19, 2000, he was denied re-employment rights and benefits
under the Family Medical Leave Act;
(c) management officials repeatedly suggested that complainant should
consider early retirement; and
(d) on April 5, 2001, a coworker was selected for the position of Public
Works Management Specialist and was assigned many of the duties that
complainant was supposed to perform.
Subsequently, complainant filed a formal complaint concerning these
issues.
By letter dated September 21, 2001, the agency requested additional
information from complainant concerning the timeliness of his EEO
Counselor contact. By letter dated October 5, 2001, complainant replied
to the agency's request. Therein, complainant stated that every time
he �used legitimate avenues of recourse to correct the problems, the
pressures applied to isolate him or to encourage him to retire� had
increased. Complainant made reference to his contact with a member
of Congress (no date was provided) as well as to his contact with the
agency's Inspector General in June 2000.
The agency issued a final decision dismissing claims (a) and (b) on
the grounds of untimely EEO counselor contact. The agency found that
complainant's initial EEO counselor contact on April 11, 2001, took
place well beyond the 45-day time limit provided by the regulations.
The agency also found that although complainant had filed a grievance
in December 2000, he failed to seek EEO counseling before April 2001.
The agency rejected complainant's argument that in April 2000, a year
before he sought EEO counseling in April 2001, he was on leave in Florida.
The agency further rejected complainant's contention that the actions
raised in the complaint were part of a pattern of harassment. Claim (c)
was dismissed for failure to state a claim. The agency made no finding
concerning claim (d). The Commission will construe the agency's failure
to address claim (d) as tantamount to a dismissal of this claim.
Claims (a) and (b)
We find that the dismissal of claims (a) and (b) on the grounds of
untimely EEO Counselor contact was proper. The incidents raised in
these claims occurred during the fall of 1999, and in November 2000,
respectively. Nevertheless, complainant did not seek EEO counseling until
April 11, 2001, well beyond the 45-day time limit. Complainant's contacts
with a member of Congress and the agency's Inspector General in June 2000,
and his filing of a grievance in December 2000, are irrelevant to the
timeliness issue because we have consistently held that internal appeals,
grievances or informal efforts to challenge an agency's adverse action
do not toll the running of the time limit to contact an EEO Counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989).
Claim (c)
We find that claim (c) was improperly dismissed for failure to state
a claim. A review of the record shows that complainant claimed that the
agency has engaged in actions to get rid of him such as, hiring someone
else to perform his duties and suggesting that complainant retire early.
We find that this claim concerns the terms, conditions, and privileges
of complainant's employment.
Claim (d)
A review of the record shows that this claim was brought to the
attention of the EEO Counselor during the inquiry of complainant's
informal complaint. This claim was also raised in complainant's formal
complaint of discrimination. Moreover, on appeal, complainant asserts
that this claim is the �single event� that led to his pursuit of the EEO
complaint process. Nevertheless, the agency did not address this claim
in its final decision and, as indicated above, we construe the agency's
silence on this claim as equivalent to its dismissal.
In claim (d) complainant contends that on April 5, 2001, a coworker was
selected for a Public Works Management Specialist position and the duties
to which complainant was assigned were also assigned to said coworker.
This claim concerns the terms, conditions, and privileges of complainant's
employment. Accordingly, it states a claim. Moreover, complainant's
initial EEO counselor contact concerning claim (d) was timely because
it was made within 45 days of April 5, 2001.
The dismissal of claims (a), (b) is AFFIRMED. The dismissal of claims
(c) and (d) is REVERSED. Claims (c) and (d) are hereby REMANDED for
further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (c) and (d))
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
June 27, 2002
Date