01980762
10-16-1998
Larry Mazie, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Larry Mazie, )
Appellant, )
)
v. ) Appeal No. 01980762
) Agency No. 9708H0760
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision
of the agency ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The final agency decision was
dated September 15, 1997. The appeal was postmarked October 30, 1997.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.<1>
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed one
allegation in appellant's complaint for failure to initiate contact with
an EEO Counselor in a timely manner, and another allegation for failure
to state a claim.
BACKGROUND
The record indicates that on June 26, 1997, appellant first sought EEO
counseling concerning allegations that his supervisor ("S1") subjected
him to sexual harassment ("Informal Complaint").<2> During the informal
stage of counseling appellant and the agency entered into an agreement,
dated July 21, 1997, which settled the matter. On that same date,
appellant was issued a notice of termination for alleged false statements
he made concerning his sexual harassment allegations. On July 22, 1997,
appellant again initiated contact with an EEO Counselor regarding the
complaint before us on appeal ("Present Complaint"). Informal efforts
to resolve his concerns were unsuccessful. In September 1997, appellant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination on the bases of race (Black), color (Black),
religion (Baptist), sex (male), national origin (African American),
and in reprisal for prior EEO activity when:
From 1995 to December 1996, appellant was sexually harassed by S1; and
After placing S1 on notice, the following incidents occurred:
S1 acted negatively toward appellant;
S1 directly questioned appellant's subordinates without appellant's
knowledge, thereby causing turmoil within appellant's section;
S1 left appellant outside the information circle on ongoing projects;
S1 displayed loud outbursts toward appellant; and
S1 took appellant's office keys and restricted his access to his
worksite.
On September 15, 1997, the agency issued a final decision dismissing
allegation (1), pursuant to 29 C.F.R. �1614.107(b), for untimely EEO
Counselor contact, and allegation (2), pursuant to 29 C.F.R. �1614.107(a),
for failure to state a claim. Specifically, the agency found that
appellant's initial EEO Counselor contact concerning allegation (1)
occurred on June 26, 1997. As this contact occurred more than forty-five
(45) days from the date of the last incident of alleged sexual harassment,
the agency determined that appellant's initial EEO Counselor contact was
untimely. With regard to allegation (2), the agency merely articulated
that the allegation failed to state a claim.
On appeal, appellant asserts that the agency breached the July 21,
1997 settlement agreement. As such, appellant argues that the agency's
determination that allegation (1) was untimely was in error, because
appellant raised the matter with an EEO Counselor the day after he
discovered the alleged breach. Appellant also contends that the
settlement agreement should be set aside because the agency offered
no consideration for the withdrawal of his informal EEO complaint, or,
alternatively, because the agency entered into the agreement in bad faith,
knowing that appellant was to be terminated later that day.
ANALYSIS AND FINDINGS
ALLEGATION (1)
As a threshold matter, we find that the agency's dismissal of allegation
(1) on the grounds of untimely EEO contact was improper since the record
shows that appellant and the agency entered into an agreement during
informal counseling of Complaint I, which settled this allegation of
sexual harassment. EEOC Regulation 29 C.F.R. �1614.107(a) provides that
the agency shall dismiss a complaint or a portion of a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. As the record clearly establishes that allegation
(1) was the subject of the July 21, 1997 settlement agreement, dismissal
is proper pursuant to 29 C.F.R. �1614.107(a).
ALLEGATION (2)
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The agency dismissed allegation (2) on the grounds that it failed to state
a claim. We find that this decision was in error. Appellant clearly
alleged that he suffered harm with respect to the terms, conditions,
or privileges of his employment, i.e., that his supervisor restricted
appellant's access to his worksite, treated him poorly, displayed loud
outbursts toward him, left appellant out of the information circle
on projects he worked on, and questioned his subordinates directly,
thereby subverting appellant's authority. As a result of the foregoing,
we find that the agency improperly dismissed allegation (2) for failure
to state a claim.
UNADDRESSED BREACH ALLEGATION
Finally, we note that appellant alleged that the July 21, 1997 settlement
agreement should be set aside for lack of consideration and/or bad
faith. We deem the agency's failure to be tantamount to a dismissal
of that matter. Accordingly, we hereby remand appellant's allegations
regarding the validity of the settlement agreement to the agency for
further processing.
CONCLUSION
Accordingly, the agency's decision to dismiss allegation (1) is AFFIRMED
for the reasons set forth herein. The agency's decision to dismiss
allegation (2) is hereby REVERSED. Allegation (2) and appellant's
allegations regarding the settlement agreement are REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER
The agency is ORDERED to take the following actions:
1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall address appellant's allegations regarding the
July 21, 1997 settlement agreement and issue a final decision thereon.
A copy of the new final decision must be sent to the Compliance Officer
as referenced below.
2) The agency is ORDERED to process the remanded allegation (2) in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to the
appellant that it has received the remanded allegation (2) within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to appellant a copy of the investigative file and also shall
notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 16, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The agency was unable to supply a
copy of a certified mail return receipt or any other material
capable of establishing the date appellant received the agency's
final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt
of the agency's final decision. See, 29 C.F.R. �1614.402.
2The Commission notes that the record contains no documentation reflecting
what specific allegations of sexual harassment were raised during the
counseling on this informal complaint.