01A11669_r
08-06-2002
Arthur A. Reifke, Jr., Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Arthur A. Reifke, Jr. v. Department of the Treasury
01A11669
August 6, 2002
.
Arthur A. Reifke, Jr.,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11669
Agency No. 01-2033T
DECISION
Upon review, the Commission finds that the agency improperly dismissed
complainant's complaint for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1), and for untimely EEO Counselor contact, pursuant
to 29 C.F.R. � 1614.107(a)(2). In his complaint, complainant claimed
that he was subjected to discrimination on the bases of race (Caucasian),
sex (male), age (D.O.B. September 6, 1948), and in retaliation for prior
EEO activity when his manager:
Discredited and demeaned complainant both in public and in private;
Made false statements to EEO investigators and failed to respond to
questions raised by the EEO counselor;
Showed favoritism to other members of her management staff;
Reduced complainant's responsibilities and his staff;
Attempted to eliminate complainant's position and disband the units
he supervises;
Criticized complainant's work and rated him lower than his peers;
Repeatedly audited the programs that complainant manages;
Engaged in prohibited activities against complainant's wife because of
their participation in the EEO process. Specifically, complainant's
manager terminated complainant's wife from the agency;
Prevented complainant from competing for promotions by making false
and misleading statements to upper management in Customs Headquarters;
Disclosed personal information about complainant to unauthorized
individuals;
Demeaned complainant in management meetings and withheld information
and memoranda, which impacted on the operational units he supervised;
Openly criticized complainant in front of peers and subordinates and
instructed her staff not to provide complainant any assistance;
Did not allow complainant to serve as the Acting Special Agent during her
absence, except for two days on June 8 and 9, 2000, when she bypassed
complainant and spoke to other Assistant Special Agents in Charge,
providing them with the information that complainant should have been
receiving;
On June 9, 2000, requested complainant's attendance at a luncheon,
and when she arrived back in town, told him to leave the luncheon;
On August 11, 2000, questioned complainant regarding his request for
his Official Personnel File (OPF), accused him of several violations,
and verbally admonished him for his actions;
Conducted an unauthorized search of his office, removed his OPF from his
office, and forwarded it to Internal Affairs for an investigation; and
On September 1, 2000, informed complainant that she would no longer
meet with him in person without a witness nor would she speak to him
on the telephone without a witness.
The agency dismissed claims 1 through 12 and claim 14, both for failure
to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), and for untimely
EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
dismissed claim 13 exclusively for untimely EEO Counselor contact, and it
dismissed claims 15, 16, and 17 exclusively for failure to state a claim.
The Commission finds that the agency improperly fragmented and dismissed
claim 1, claims 3 through 12, and claims 14 through 17, for failure to
state a claim. Viewing the incidents in the light most favorable to
complainant, we find that the accumulation of claims and events detailed
by complainant's complaint reflect a claim of ongoing discriminatory
harassment by his manager. By alleging a pattern of harassment,
complainant has stated a cognizable claim. Therefore, we find that the
agency improperly dismissed claim 1, claims 3 through 12, and claims
14 through 17, for failure to state a claim. We find that the agency
properly dismissed claim 2 for failure to state a claim, because to the
extent that complainant has claimed that the treatment by his manager
resulted in improper processing of his complaint, complainant did not
suffer a personal loss or harm to a term, condition, or privilege of
his employment.
The agency also dismissed claims 1 through 14 for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). EEOC Regulation 29
C.F.R. � 1614.105(a)(1) requires complaints of discrimination to be
brought to the attention of the EEO Counselor within forty-five (45)
days of the date of the claimed discriminatory matter, or, in the case
of a personnel action, within forty-five (45) days of the effective date
of the action. The Commission's regulations, however, provide that the
time limit will be extended when the complainant shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission. See
29 C.F.R. � 1614.105(a)(2).
On appeal, complainant claims that during the informal counseling session,
he was not told that he needed to contact an EEO Counselor within a
forty-five (45) day limitation period. In response to complainant's
appeal, the agency explained that as Assistant Special Agent in Charge
(SAIC) for the Operational Support Division (OSD), complainant was the
supervisor responsible for ensuring that EEO postings were maintained in
the OSD office area explaining the EEO Complaint process. Therefore,
we do not find complainant's claim of lack of actual or constructive
knowledge about the forty-five (45) day limitation period to be credible.
We do find, however, that the claims alleged in complainant's complaint
concern interrelated matters that comprise a single claim of harassment.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims within a complaint when
the complainant alleged a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999).
We note that complainant initiated EEO Counselor contact on September
8, 2000. We also note that the various incidents described in the
complaint do not contain specific dates indicating when they occurred,
but that complainant's manager did not assume her position until late
summer 1998, and, it does not appear that any of the incidents occurred
prior to that time. Nevertheless, in his complaint, complainant claims
that he was subjected to continual harassment based on his race, sex,
age, and in retaliation for prior EEO activity. Complainant claims that
the same manager was involved in all of the alleged incidents. We find
that claim 1 and claims 3 through 14 relate to the other timely incidents
since they all involve claims of harassment. Therefore, because the last
chronological events described in complainant's complaint occurred within
forty-five (45) days of his initial EEO Counselor contact on September 8,
2000, we conclude that complainant established a continuing violation,
and, we find that complainant timely contacted an EEO Counselor for
claim 1 and claims 3 through 14, as well as for claims 15 through 17.
Therefore, the Commission AFFIRMS the agency's dismissal of claim 2,
and REVERSES the agency's dismissal of claim 1 and claims 3 through 17.
Claim 1 and claims 3 through 17 are REMANDED to the agency for further
processing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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
August 6, 2002
__________________
Date