01A04498_r
06-11-2001
Ayodeji A. Awofeso, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Ayodeji A. Awofeso v. Department of State
01A04498
June 11, 2001
.
Ayodeji A. Awofeso,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A04498
DECISION
Complainant filed an appeal to this Commission from a determination by the
agency which declined to provide EEO counseling, regarding a complaint
that alleged 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 agency's determination was dated September 28, 1999.
The appeal, dated October 6, 1999, was received by the Commission on
October 8, 1999. Accordingly, the appeal is timely.
A review of the record reveals that, by letter dated August 11, 1999,
complainant contacted the agency and alleged that he had been subjected
to unlawful employment discrimination on the basis of national origin
(Nigerian) and that he was terminated from his position with the
Department of State in Lagos, Nigeria, in 1986. This letter incorporated
by reference, prior correspondence between complainant's former attorneys
and the agency and an affidavit from complainant in which the complainant
stated he was terminated without due process.
In a response dated September 28, 1999, the agency stated that complainant
was not a citizen of the United States, but was a citizen of Nigeria,
employed by the agency overseas, and therefore specifically excluded from
coverage by the anti-discrimination statutes under 42 USC �2000e-16(a)
and Commission regulation 29 C.F.R. �1614.103(d)(4). The agency concluded
that the Commission had no jurisdiction over the matters alleged.
On appeal, complainant contends that the agency improperly denied
him all due process rights and that his employment contract with the
agency granted certain benefits under the terms of his Foreign Service
appointment, including the right to be free from unlawful discrimination
The Commission first notes that the agency did not issue a final decision
in this case. However, in its letter to complainant's attorney dated
September 28, 1999, which in essence dismissed complainant's claim, the
agency determined that complainant was a foreign national when he was
involuntarily separated from his position with the agency. The agency
therefore concluded that complainant was not covered by the federal sector
EEO process, and thus the agency had no duty to process his EEO claims.
The agency further determined that the Commission lacked jurisdiction
over the complainant's allegations. The Commission will construe the
letter of September 28, 1999, as a final decision and de facto dismissal,
timely appealed to the Commission.
Under the Commission's regulatory pre-complaint procedures, EEO counseling
is a mandatory first step to pursuing a claim of discrimination in the EEO
process, and the agency must provide the counseling to any �aggrieved
person� who requests it. See 29 C.F.R. �� 1614.104 and 1614.105.
The Commission has, nevertheless, held consistently that claims of
unlawful discrimination brought by foreign nationals employed by agencies
outside the United States do not come within the purview of the EEOC
Regulations. Fogarty v. Department of State, Appeal No. 01974143 (August
6, 1998); Bethune v. Panama Canal Commission, Request No. 05940402,
(July 15, 1994); Howell v. Department of State, Appeal No. 01930262
(December 18, 1992). Accordingly, given the specific circumstances of
the instant case, we find no purpose would be served in remanding this
matter to the agency for commencement of the EEO counseling process and
issuance of a final agency decision that would again dismiss complainant's
complaint for lack of Commission jurisdiction. We therefore AFFIRM the
agency's dismissal of complainant's claims.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 11, 2001
__________________
Date