01A11014_r
10-09-2002
Peter L. Greenfield, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Peter L. Greenfield v. Department of the Treasury
01A11014
October 9, 2002
.
Peter L. Greenfield,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11014
Agency No. TD 00-1228
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 23, 2000, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On May 24, 2000, complainant contacted the EEO office, alleging that he
was the victim of unlawful employment discrimination on the bases of
sex and age. Informal efforts to resolve complainant's concerns were
unsuccessful. On August 8, 2000, complainant filed a formal complaint.
The agency, in its decision, framed the claims as follows:
Commencing on September 28, 1997, and continuously, the complainant has
not received the full period of time grade retention following a forced
downgrade from GS-343-14 to GS-235-13; and
In May 2000, the complainant became aware that a GS-343-14 co-worker
returned from a detail to the Education Branch and remained a GS-343-14,
after the complainant was advised that the GS-343-14 positions were
abolished and was forced to take a downgrade to a GS-235-13, while the
complainant continued to perform the same duties that he performed at
the GS-343-14 level?.
On October 23, 2000, the agency issued a decision dismissing the
complaint. Specifically, the agency dismissed claim (1) on the grounds of
untimely EEO Counselor contact. The agency determined that complainant's
initial EEO contact of May 24, 2000, was untimely regarding this claim.
The agency determined that complainant's downgrade and grade retention
were effective September 28, 1997; and that the grade retention was in
effect from the effective date of the down grade until April 14, 1999.
The agency found that after April 14, 1999, when complainant no longer
received the pay retention, complainant did not contact an EEO Counselor
within forty-five days, seeking EEO counseling in May 2000. The agency
dismissed claim (2) for failure to state a claim.
Claim (1)
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In his complaint, complainant asserts that he was discriminated against
when he was not given the full period of time for grade retention
following a downgrade from GS-343-14 to GS-235-13. Here, the record
reveals that complainant received a downgrade and grade retention
effective September 28, 1997. The record reflects that the retention
period expired in 1999. Complainant did not contact the EEO office until
May 24, 2000, well beyond the forty-five day time limitation. On appeal,
complainant failed to provide sufficient justification for extending or
tolling the time limit. Accordingly, claim (1) was properly dismissed.
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
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).
Here, complainant claimed that he suffered discrimination when he was
forced to accept a lower graded position as a result of his position being
abolished while other employees were not required to accept downgrades.
Although the agency argues that complainant's downgrade was voluntary,
we find such argument prematurely goes to the merits of the complaint.
Accordingly, the agency's decision to dismiss claim (2) for failure to
state a claim is improper.
Finally, the Commission notes that the record contains a letter from the
agency's Office of Chief Counsel to an agency EEO Director, suggesting
that the agency should have dismissed claim (2) on the grounds of
untimely EEO Counselor contact. In its final decision, however, the
agency did not dismiss claim (2) on these grounds and does not address
these grounds on appeal. The Commission will not consider these grounds
in the instant appeal. However, the agency is not foreclosed on remand
from issuing a new final decision dismissing claim (2) on any ground
which is legally and factually supported.
In summary, the agency's decision dismissing claim (1) was proper and is
hereby AFFIRMED. The agency's decision dismissing claim (2) is REVERSED
and claim (2) is REMANDED to the agency for further processing in
accordance with this decision and the Order stated below.
ORDER (E0900)
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 (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
October 9, 2002
__________________
Date