01994609
07-10-2002
Alfred L. Davis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Alfred L. Davis v. Defense Logistics Agency
01994609
July 10, 2002
.
Alfred L. Davis,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01994609
Agency No. JQ-99-024
DECISION
Complainant filed an appeal with this Commission from a final
agency decision pertaining to 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. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On November 16, 1998, complainant contacted the EEO office. Informal
efforts to resolve his concerns were unsuccessful.
On March 4, 1999, complainant filed a formal complaint. Therein,
complainant claimed that he was discriminated against on the basis of
race when:
(a) in March/April 1996 time frame his first line supervisor brought
a sexual harassment claim against him in an attempt to harass him;
(b) he was wrongly accused by a co-worker of sexual harassment on July
31, 1997. He alleged that his first level supervisor and his work leader
were also involved. He specifically alleged three agency officials
conspired to frame him for sexual harassment. He further alleged that
the DDSP security investigation that was conducted
by a DDSP Investigator from August to October 1997 concerning the
sexual harassment charge leveled against him on July 31,
1997, was not properly conducted;
(c) he was attacked on October 24, 1997, by the DDSP Deputy Commander
when he placed his hands on his shoulders prior to a meeting;
(d) the agency's base health clinic doctor; the base health clinic
nurse; his second level supervisor; and the DDSP EEO Specialist forged
an Individual Sick Slip, DD Form 689 on October 31, 1997, in order to
have him returned to the Storage Branch, Bin Area. He stated that he
feared for his safety if he were returned to the Bin Area;
(e) he was issued a letter dated November 24, 1997, by his second level
supervisor proposing a ten (10) day suspension for the following alleged
offenses: defiance of and contemptuous behavior toward constituted
authority, making insulting and disparaging racial remarks and breach
of safety regulations and practices; and
(f) he alleged he was discriminated against by DDSP Security when on
November 18, 1998, the DDSP Investigator would not meet with him to take
his statement concerning his investigation of his supervisor.
On May 4, 1999, the agency issued a decision dismissing claims (a), a
portion of claim (b), (d) and (e) for stating the same that is pending
before or has been decided by the agency or the Commission. The agency
dismissed the portion of claim (b) relating to a purportedly improper
investigation, and claim (f) for failure to state a claim. Further, the
agency dismissed claims (c) and (d) for untimely EEO Counselor contact.
The agency determined that complainant's contact with an EEO Counselor
on November 16, 1998, occurred more than 45 days after these alleged
discriminatory incidents.
Claim (a)
Although the agency dismissed claim (a) for raising the same claim that
was addressed in a prior complaint, the Commission determines that claim
(a) is more properly analyzed in terms of whether it states a claim.
The Commission determines that complainant was not rendered aggrieved
regarding the matter addressed in this claim. The processing of a
complaint by an employee wherein the employee challenges the filing of
another EEO complaint by a co-worker or other agency employee would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May
25, 1994). The agency's dismissal of claim (a) is AFFIRMED.
Claims (b) and (e)
EEOC Regulation 29 C.F.R. 1614.107(a)(1) further provides that an agency
shall dismiss a complaint that states the same claim that is pending
before or has been decided by the agency or the Commission.
With regard to claim (b), the agency determined that the record shows
that an October 24, 1997 Resolution Agreement resolved matters raised in
a formal complaint filed on September 11, 1997 (DLA Case No. DM-97-102),
and pre-complaints raised as of October 6, 1997. The issues raised in
DLA Case No. DM-97-102 and pre-complainants as of October 6, 1997 include
the July 31, 1997 allegation of sexual harassment, the allegation of
a conspiracy and the allegation of an improper security investigation.
We find that the record establishes that claim (b) was resolved in the
October 24, 1997 Resolution Agreement. Moreover, the agency properly
determined that the matter relating to the agency's purportedly improper
conducting of a security investigation fails to state a claim. The agency
dismissal of claim (b) is AFFIRMED.
With respect to claim (e), the agency determined that a Resolution
Agreement dated February 11, 1998, addressed the matter of complainant's
proposed ten (10) day suspension. The record contains the February
11, 1998 Resolution Agreement. The agreement resolved the issue of
the proposed suspension that is addressed in claim (e), and provided
for the reduction of the proposed ten (10) day suspension for conduct
related offenses to a Letter of Reprimand. The dismissal of claim
(e) is AFFIRMED.
Claim (f)
Complainant challenges a DDSP Investigator's refusal to meet with him
to take his statement concerning the investigation of complainant's
supervisor, we find that the agency's decision dismissing claim(f) for
failure to state a claim was proper. We find that complainant has failed
to show how the alleged incidents resulted in a harm or loss regarding a
term, condition or privilege of his employment. The dismissal of claim
(f) is AFFIRMED.
Claims (c) and (d)
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.
Regarding claims (c) and (d), based on the evidence of record, the
Commission finds that complainant's November 16, 1998 EEO contact
occurred beyond the forty-five (45) day time limit. We note that on
appeal, complainant asserts that he made attempts to correspond with
agency EEO officials following the alleged discriminatory events.
Other than complainant's bare assertion on appeal, however, there is
nothing to support this contention. Complainant has failed to present
adequate justification pursuant to for extending the limitation period
beyond forty-five days. The Commission finds that the agency properly
dismissed claims (c) and (d) for untimely EEO Counselor contact.
The agency's decision to dismiss claims (c) and (d) is AFFIRMED.
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 (S0900)
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. 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
July 10, 2002
__________________
Date