01a30538
01-13-2005
Rick W. McGilton, et al., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Rick W. McGilton, et al. v. Department of the Air Force
01A30538
January 13, 2005
.
Rick W. McGilton, et al.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A30538
Agency Nos. AR000021354, WE1M00045
Hearing Nos. 100-AO-8088X, 100-A2-8056X
DECISION
Complainant timely filed the instant appeal regarding the agency's
finding of no discrimination on complainant's individual complaint and
the dismissal of his class complaint, on the grounds of untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
The record reflects that by letter dated January 21, 1998, complainant,
an Equal Employment Specialist, wrote to the agency's Deputy Chief
of Staff for Personnel, regarding concerns about the impact of the
new career program on the agency's EEO staff. The Deputy Chief of
Staff responded to complainant's concerns in a letter dated March 1998.
Thereafter, in correspondence dated November 6, 1999, addressed to the
Secretary of Defense, complainant raised his concerns regarding the
"Personnel Civilian Career Program." Finally, in complainant's November
6, 1999 letter, he requested EEO counseling to resolve his concerns.
Informal efforts to resolve complainant's concerns were unsuccessful.
In his formal complaint (identified by the agency as Agency No.
WE1M00045), complainant alleged that he was subjected to discrimination
in reprisal for prior EEO activity when:
1. he received a letter dated January 5, 1998 regarding a change
in the agency's career program structure and the establishment of the
"Personnel Civilian Career Program;
2. on September 17, 1999, he improperly received a �C� rating;
3. he was not provided due process in the processing of his EEO claim
and agency officials interfered in the processing of his complaint by
not referring informal counseling to the Department of Defense, which
denied him prompt and impartial complaint processing;
4. and he was not selected for an EEO Manager position in January 2000.
Thereafter, complainant expressed interest in having the individual
complaint certified as a class complaint, alleging that the development
of the "Personnel Civilian Career Program," affected an entire class of
EEO staff. An EEOC Administrative Judge (AJ) granted the complainant's
request to have the career program issue (claim (1)) addressed as a
class complaint (captioned herein as Agency No. WE1M00045/ Hearing
No. 100-A2-8056X).
The agency filed a motion for summary judgment on the individual
complaint. The AJ issued a decision dated August 8, 2002, on the
individual complaint. Therein, the AJ noted that complainant's motion
to have claim (1) addressed as a class complaint was granted, and that
it was dismissed as an issue in the individual complaint. The AJ then
determined that regarding claims (2) - (4), the record consists of the
Agency's Motion, Complainant's Rebuttal to the Agency's Motion, and
the Investigative Report. Without further elaboration, the AJ granted
summary judgment.
In a separate decision dated September 6, 2002, on the class complaint,
the AJ found that complainant failed to seek EEO counseling in a timely
manner with respect to claim (1). Specifically, the AJ found that the
alleged discriminatory event occurred on January 5, 1998, the date of
the letter announcing the establishment of the agency's career program.
The AJ found that complainant first requested EEO counseling on November
6, 1999, 22 months after the personnel action at issue. The agency did
not issue a final order on the class complaint, and the AJ's decision
dismissing the class complaint became the agency's final agency decision,
pursuant to 29 C.F.R � 1614.109(i).
On September 30, 2002, the agency issued a Final Order on the
individual complaint, identifying the individual complaint as Agency
No. WE1M00045/Hearing No. 100-A0-8088X, and adding a separate Agency
No. AR000021354. The agency fully implemented the decision of the AJ
regarding the individual complaint, noting that the AJ �found that the
complainant did not establish by a preponderance of the evidence that
the matters at issue were motivated by unlawful discrimination.�
Class Complaint - 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 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.
Here, complainant alleges that since the implementation of the career
program, he and other specialists have to compete with civilian personnel
for positions which, in essence has adversely affected his seniority as
an EEO Specialist and his opportunity for promotion and advancement as
an EEO professional.
The record discloses that on January 5, 1998, complainant received a
letter regarding a change in the agency's career program structure
and the establishment of the �Personnel Civilian Career Program.�
Complainant did not initiate contact with an EEO Counselor until
November 6, 1999. However, where, as here, a complainant challenges an
alleged discriminatory seniority system, the time for challenging that
seniority system begins to run (a) when the system is adopted, (b) when an
individual is first subjected to the system, or (c) when an individual is
injured by the application of the system. See 42 U.S.C. 2000e-5(e)(2).
Given the present record, the Commission is unable to ascertain when any
of these three events occurred. Accordingly, the agency's decision to
dismiss the class complaint is VACATED. The class complaint is REMANDED
to the agency for further processing in accordance with the ORDER below.
Individual Complaint - Claims (2) - (4)
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
With respect to claims (2) - (4) as outlined in complainant's individual
complaint, the Commission finds, after reviewing the Motion upon which the
AJ relied in finding no discrimination, that the AJ's decision was proper.
While there is no discussion by the AJ, specifically concerning claims
(2) - (4) of complainant's individual complaint, the agency's Motion
for Summary Judgment correctly points out that complainant failed to
establish a prima facie case of discrimination on any alleged basis.
Specifically, as the agency indicates in its Motion, complainant failed
to demonstrate that individuals similarly situated were treated more
favorably than complainant. Moreover, the agency's Motion articulated
legitimate, non-discriminatory reasons for its actions, which complainant
did not rebut. Upon review, the Commission finds that there were no
genuine issues of material fact in dispute in this matter. Consequently,
the AJ's decision, as implemented by the agency, regarding claims (2) -
(4) is AFFIRMED.
In summary, the agency's decision dismissing the class complaint
(claim (1)) on the grounds of untimely EEO Counselor contact is VACATED.
The claim is REMANDED to the agency for processing in accordance with this
decision and the order below. The decision finding no discrimination
on the individual complaint (comprised of claims (2) - (4)) is AFFIRMED
for the reasons set forth herein.
ORDER
The agency is ORDERED to take the following actions:
The agency is ordered to supplement the record with relevant documentation
concerning the Personnel Civilian Career Program. Specifically, the
agency shall include documentation identifying when the program was
adopted, when complainant was first subjected to the program, and when
complainant was purportedly injured by the application of the program.
Within thirty (30) days of the date that this decision becomes final,
the agency must forward the entire record, including all information
collected in this supplemental investigation, to the appropriate EEOC
District Office. In its letter of transmittal, the agency shall request
that an Administrative Judge be assigned to determine whether the class
should be certified for further processing in accordance with 29 C.F.R. �
1614.204.
The agency shall provide the Compliance Officer referenced herein with
a copy of its transmittal notice as referenced in this ORDER.
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
January 13, 2005
__________________
Date