01983136
03-10-1999
William E. Moore, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
William E. Moore, )
Appellant, )
)
)
v. ) Appeal No. 01983136
) Agency No. AGWIF09710H0110
Louis Caldera, )
Secretary, )
Department of the Army, )
)
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The
final agency decision was dated February 17, 1998. The appeal was
postmarked March 11, 1998. 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.
ISSUE PRESENTED
The issue on appeal is whether the agency improperly dismissed the
complaint for the appellant's failure to initiate contact with an EEO
Counselor.
BACKGROUND
The record indicates that on September 25, 1997,the appellant initiated
contact with an EEO Counselor regarding his first complaint. Informal
efforts to resolve his concerns were unsuccessful. On October 8,
1997, the appellant filed a formal complaint, alleging that he was the
victim of unlawful employment discrimination on the basis of his sex
and religion when:
He was issued a Notice of Proposed Removal from federal service;
On October 29, 1997, the appellant received a Notice of Removal which
was effective immediately.
The appellant filed an additional formal complaint on or about December
27, 1997 alleging age discrimination when:
(1) He was removed from federal service;
(2) He was not personally presented with awards for Length of Service
and for service related to the California/Nevada Flood of 1997;
The agency issued two letters to the appellant subsequent to his filing
a second complaint informing him that he was required to meet with an EEO
counselor before his formal written complaint could be accepted. From the
record it appears that no subsequent meetings between an EEO counselor
and the appellant took place.
The EEO Counselor's Report dated December 5, 1997 reflects that
the counselor discussed the issue of appellant's removal from federal
service, specifically stating that the appellant considered this action
to be reprisal against him. The counselor stated that the removal
"is included and now forms part of the subject complaint". There is no
indication that the counselor discussed the issue of awards with the
appellant during the counseling phase.
On February 17, 1998, the agency issued a final decision dismissing
appellant's second complaint for failure to undergo EEO counseling and
because he had raised a new basis of discrimination. Specifically,
the agency found that the appellant's refusal to make an appointment
or initiate any contact with a counselor after receiving notice from
the agency to do so was grounds for dismissal. Furthermore, the agency
found that the appellant had raised age as a new basis of discrimination
without receiving counseling. This too warranted the dismissal of the
complaint according to the agency.
No additional arguments were made by either party on this appeal.
ANALYSIS AND FINDINGS
The Commission has held that a complainant may allege discrimination
on all applicable bases, including sex, race, national origin, color,
religion, age, disability and reprisal, and may amend his or her complaint
at any time, including at the hearing, to add or delete bases without
changing the identity of the claim. See Sanchez v. Standard Brands, Inc.,
431 F.2d 455 (5th Cir. 1970); Dragos v. United States Postal Service,
EEOC Request No. 05940563 (January 19, 1995). Here, the appellant raised
age as an additional basis at the time he filed a second complaint but
prior to any investigation by the agency. Therefore, we do not view this
as an adequate reason for dismissal of his complaint.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling.
The agency does not appear to claim that the appellant was not counseled
on the issue of his permanent removal from federal service prior to
filing his second complaint and such is not borne out by the record.
As indicated above, the EEO Counselor discussed the notice of removal
with the appellant during the counseling phase and made it part of the
first complaint. As stated above, there is no basis to dismiss this
issue and it should be accepted for investigation. The agency should
proceed with investigating this issue on the basis of sex, religion and
age discrimination.
The record does indicate that the appellant did not discuss the second
issue of not being presented with an award with the EEO Counselor at any
time. Therefore, we agree that this issue should be dismissed.CONCLUSION
Accordingly, we REVERSE the agency's dismissal of the issue of the
appellant's removal from federal service and REMAND it for processing
as described below. We AFFIRM the agency's dismissal of the issue of
the appellant not being presented with an award.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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
the 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 the 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 filed your appeal with the
Commission. 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:
3/10/99
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations