Ayodeji A. Awofeso, Complainant,v.Colin L. Powell, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionJun 11, 2001
01A04498_r (E.E.O.C. Jun. 11, 2001)

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