01982413
04-28-1999
Arthur E. Gowran, Appellant, v. Donna A. Tanuoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Arthur E. Gowran v. Federal Deposit Insurance Corporation
01982413
April 28, 1999
Arthur E. Gowran, )
Appellant, )
) Appeal No. 01982413
v. ) Agency No. 97-94p
)
Donna A. Tanuoue, )
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
On February 10, 1998, appellant filed a timely appeal from a January 8,
1998 final agency decision, received by him on January 13, 1998, which
dismissed six of seven allegations of his complaint.
The agency framed the allegations of appellant's July 31, 1997 complaint
as whether appellant was discriminated against on the bases of age (June
1, 1946), physical disabilities (heart disease, high blood pressure,
kidney disease and TMJ), and in reprisal (union grievance) when the
following allegedly occurred:
A. During the last week of October 1996 [Person A], the Senior Counsel,
Legal Division, issued complainant a performance appraisal covering the
period from January 1966 to September 1996, which underrated his overall
performance as fully successful; and on November 5, 1996, Person A issued
complainant an amended performance appraisal which continued to underrate
his overall performance as fully successful.
B. On November 25, 1996, [Person A] pressured complainant to sign his
1997 performance plans by informing him by telephone that if complainant
signed the plan he would not have to meet with him; in the alternative,
if complainant accepted the agency's buy-out offer, he would not have
to sign the plan.
C. On December 4, 1996, while presenting complainant with an award
in front of his co-workers, [Person A] humiliated and insulted him,
by stating that complainant has settled a vast number of small cases,
which were marginal.
D. On December 6, 1996, [Person B], the Associate General Counsel, denied
complainant's request, sent to him by e-mail on December 2, 1996, to be
reassigned from the supervision of Person A to that of another Senior
Counsel in a non-litigation unit, as a reasonable accommodation for his
disabilities.
E. On January 8, 1997, in response to complainant's request of August
26, 1996, December 17, 1996, December 18, 1996 for a significant case
assignment, Person A assigned appellant a case that complainant did not
consider significant.
F. On April 14, 1997, [Person C], the Assistant General Counsel,
complainant's second level supervisor, denied complainant's March
17, 1994 request to be reassigned to another Senior Counsel in a
non-litigation unit, as reasonable accommodation for his disabilities.
G. On August 1, 1997, complainant was forced to acquiesce to the FDIC's
buy-out offer as a result of his involuntary reassignment on May 7,
1997, to a litigation unit wherein contrary to written assurances by
[Person C] and despite management's awareness that his health did not
permit him to litigate court cases, he was assigned such cases.
In its final decision, the agency accepted allegation G for investigation.
The agency dismissed allegation A on the grounds that appellant was
pursuing the claim under the negotiated bargaining procedure. Allegation
A was also dismissed on the alternative grounds of failure to contact an
EEO Counselor in a timely manner. The agency also dismissed allegations
B through F for untimely EEO contact, noting the date of contact as June
3, 1997. The agency stated that appellant had a reasonable suspicion
of discrimination regarding allegation B on November 26, 1997, and that
therefore when the other discriminatory incidents occurred subsequently,
appellant should have suspected discrimination. The agency also stated
that the allegations did not constitute a continuing violation.
On appeal, appellant asserts that he contacted an EEO Counselor (Counselor
A) in mid-November 1996 regarding his evaluation. Appellant further
states that because of work schedules and the Thanksgiving holiday, the
two were unable to meet until December 4, 1996. Appellant asserts that
on December 11, 1996, he sent a detailed electronic mail message (e-mail)
to Counselor A in which he recounted incidents of discrimination he had
experienced under Person A. On December 11, 1996, he forwarded the same
e-mail to Counselor B, the person he was told was in charge of the EEO
Counselors. Appellant further indicated that he received conflicting
information from the union representative and Counselor B regarding
filing an EEO complaint and a grievance. Appellant further asserts that
he called his union representative and Counselor B "innumerable times"
over several weeks in December 1996, but his calls were not returned.
Appellant also asserts that Counselor B and the union representative
did not respond to his e-mail messages.
Allegations B, D, E, and F
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 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 45-day limitation period is
triggered. See Ball v. U.S. Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitation period is not triggered until a
complainant should reasonably suspect discrimination, but before all the
facts that would support a charge of discrimination have become apparent.
Although careful compliance with the time limits generally is required
of parties alleging discrimination, Commission regulations further
provide that the 45-day period may be extended where the individual
shows that he or she was not notified of the time limit and was not
otherwise aware of it, that he or she did not know and reasonably should
not have been aware that the alleged discriminatory matter or personnel
action occurred, that despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting an EEO Counselor
within the time limit, or for other reasons deemed sufficient by the
agency or the Commission. See 29 C.F.R. �1614.105(a)(2). In addition,
EEOC Regulation 29 C.F.R. �1614.604(c) provides that the time limits in
Part 1614 are subject to waiver, estoppel and equitable tolling.
The record contains a Counselor's Report which indicates that appellant
initiated EEO contact on June 3, 1997.
Appellant's complaint reflects that after discussing his dissatisfaction
with his evaluation with Person A, he told Person A that he would be
filing a grievance. The complaint also discloses that on November
5, 1996, appellant believed that he was being discriminated against
regarding his evaluation. Appellant's complaint also reflects that
"because management was dragging its feet" on his grievance and was
refusing to comply with his information requests, he withdrew his
grievance and began EEO counseling.
The record contains several e-mail messages. In a December 5, 1996
e-mail message from appellant to Counselor A, appellant states that he
consulted with a lawyer regarding the age discrimination issue that he
and Counselor A had discussed on December 4, 1996, and that he wanted to
file a complaint based on age discrimination. Appellant asked what could
he do to get the process started because he had received his performance
evaluation on November 5, 1996, and he wanted to be sure time deadlines
were met.
In a December 11, 1996 e-mail from appellant to the union representative
which he also forwarded to Counselors A and B on December 12, 1996,
appellant recounted incidents that occurred under Person A, including the
matters raised in allegations A, B, and C. An e-mail receipt indicates
that the forwarded December 11, 1996 e-mail was received by Counselor B
on December 12, 1996. There is no record of any e-mail that was sent
directly to Counselor A or Counselor B on December 11, 1996, nor is
there any record of receipt of the forwarded December 11, 1996 e-mail by
Counselor A. The record also contains a December 17, 1996 message from
appellant to his union representative wherein he stated that Counselor
B told him on December 17, 1996, that he could not file an EEO complaint
based on age discrimination because he had filed a grievance.
In a January 24, 1997 e-mail, from appellant to the union representative,
appellant stated that he was led to believe by the union representative
that he could file a grievance and an EEO complaint.
The record also contains an extensive chronological listing of
appellant's actions, including e-mails and conversations, from October
21, 1994 through June 2, 1997 and, also, notes that appellant took of
conversations he had with different individuals. The log entries do not
reveal any e-mail sent by appellant to the EEO Counselors after January
27, 1997. The January 27, 1997 entry indicates that the message concerned
appellant's performance evaluation. The log reveals that up to May 19,
1997, appellant was still pursuing union resolution. The log does not
disclose any conversations between appellant and the EEO Office.
Upon review, we find that allegation B was properly dismissed for untimely
EEO contact and appellant has not provided justification sufficient
to extend the time limit. The Commission has held that in order to
establish EEO Counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent
to begin the EEO process. Allen v. U.S. Postal Service, EEOC Request
No. 05950933 (July 8, 1996). Although we find that appellant did contact
an EEO Counselor regarding allegation B in December 1996, by forwarding
a copy of an e-mail message addressed to her union representative in
which allegation B was mentioned, we find that he failed to exhibit an
intent to pursue this allegation until June 1997. The Commission has
consistently held that utilization of internal agency procedures, union
grievances, and other remedial processes does not toll the time limit
for contacting an EEO Counselor. See Kramer v. U.S. Postal Service,
EEOC Appeal No. 01954021 (October 5, 1995); Williams v. U.S. Postal
Service, EEOC Request No. 05910291 (April 25, 1991); Hosford v. Veterans
Administration, EEOC Request No. 05890038 (June 9, 1989). Moreover, we
find no evidence that appellant was misled or discouraged by EEO officials
from pursuing his EEO rights. See Elijah v. Department of the Army,
EEOC Request No. 05950632 (March 28, 1996) (if agency officials misled
appellant into waiting to initiate EEO counseling, agency must extend
time limit for contacting EEO Counselor); Wilkinson v. U. S. Postal
Service, EEOC Request No. 05950205 (March 25, 1996) (agency could not
dismiss complaint for untimeliness where the untimeliness was caused
by the agency's action in misleading or misinforming an appellant).
To the extent that appellant may be alleging that he was misinformed
about his rights by his union representative, the Commission notes that
the alleged actions of the union representative do not constitute actions
of the agency for purposes of receiving a time extension.
Regarding allegations D, E, and F, we find that each of the allegations
constituted separate and discrete events that should have given rise
to a reasonable suspicion on the part of appellant that he was being
discriminated against when his requests for accommodation and his requests
for significant cases were denied. Therefore, appellant should have
contacted an EEO Counselor within 45 days of the alleged discriminatory
actions. Appellant does not dispute that he was aware of the time limits.
There is no evidence that appellant contacted an EEO Counselor prior to
June 3, 1997, concerning these claims. Accordingly, his contact was beyond
the requisite 45 days and we find no reason to extend the time period.
Allegation A
EEOC Regulation 29 C.F.R. �1614.107(d) provides, in pertinent part, that
the agency shall dismiss a complaint where the complainant has raised the
matter in a negotiated grievance procedure that permits allegations of
discrimination and �1614.301 indicates that the complainant has elected
to pursue the non-EEO process.
EEOC Regulation 29 C.F.R. �1614.301(a) provides that when a person is
employed by an agency subject to 5 U.S.C. �7121(d) and is covered by a
collective bargaining agreement that permits allegations of discrimination
to be raised in a negotiated grievance procedure, the employee wishing
to file a complaint or a grievance on a matter of alleged employment
discrimination must elect to raise the matter under either part 1614
or the grievance procedure, but not both. An employee who files a
grievance with an agency whose grievance procedure permits the raising
of allegations of discrimination may not thereafter file a complaint on
the same matter under part 1614, irrespective of whether the agency has
informed the individual of the need to elect or of whether the grievance
has raised an issue of discrimination. Any such complaint filed after a
grievance has been filed on the same matter shall be dismissed without
prejudice to the complainant's right to proceed through the negotiated
grievance procedure.
The record contains a copy of a collective bargaining agreement which
reflects in Article 53, Section 1(E) that allegations of discrimination
could be raised. The record also contains a grievance which discloses
that appellant filed a grievance on November 26, 1996, concerning her
performance appraisal and the performance plan. Appellant's complaint
also reflects that he filed a grievance regarding his performance
evaluation on November 26, 1996.
We find that because appellant filed a grievance regarding his
performance evaluation on November 26, 1996, pursuant to the provisions
of a collective bargaining agreement that permitted allegations of
discrimination, he could not thereafter file a discrimination complaint on
the same matter. In addition, we find no evidence that the EEO Counselor
misled appellant into filing a grievance. By appellant's own admission on
appeal, he stated that he and Counselor A did not meet until December 4,
1996, by which time appellant had already filed his grievance. Moreover,
in his January 1997 e-mail message, appellant stated that it was the
union representative that incorrectly advised him to file a grievance.
Allegation C
Upon review, we find that allegation C is more appropriately dismissed
for failure to state a claim. The Commission has consistently held that
a remark or comment, unaccompanied by concrete action, is not a direct
and personal deprivation sufficient to render an individual aggrieved for
purposes of Title VII. See Simon v. U.S. Postal Service, EEOC Request
No. 05900866 (October 3, 1990). Accordingly, the Commission finds that
allegation C does not state a claim.
Consistent with our discussion herein, the agency's decision is AFFIRMED.
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 (S0993)
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. 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:
April 28, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations