01986551_r
09-03-1999
Bobby G. Davis, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Bobby G. Davis, )
Appellant, )
)
)
v. ) Appeal No. 01986551
) Agency No. FO980710230
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On August 25, 1998, appellant filed a timely appeal of a final agency
decision, which was dated August 17, 1998, dismissing his complaint,
pursuant to 29 C.F.R. �1614.107(b), due to untimely EEO Counselor contact.
In his formal complaint dated August 6, 1998, appellant alleged that
he was discriminated against based on physical disability (nervous
condition), age (68), and in reprisal for his whistle blower activity,
when from 1982 through 1994, he was subjected to harassment and a hostile
work environment and was denied promotions and reassignment/transfer; and
in October 1994, he was constructively discharged. Appellant indicated
that in 1993, he contacted an identified EEO Counselor and asked him to
fill out a complaint for him, but the Counselor called him back several
months later and told him that he �did not have a complaint and that [the
Counselor] would not file any papers� for him. Appellant also indicated
that in 1993 and June 1994, he wrote letters to another identified EEO
Counselor about his being mistreated by management, and that Counselor,
in response, told him that the matter was closed and not to write any
more letters to his Senator.
In his formal complaint, appellant also raised matters which occurred
after his 1994 retirement. Specifically, appellant alleged that in June
1997, while attending his granddaughter's performance in a local play, he
had a confrontation with the identified Counselor/coworker, which resulted
in him hitting that individual and he was, later, charged with assault;
and in July 1998, he received a slanderous memo from that individual.
In its final decision, the agency identified the allegations of
appellant's complaint as whether appellant was discriminated against when
he was not selected for four lock and dam operator positions during the
period 1982 through 1995 at Dardanelle Resident Office. The agency also
stated that appellant's allegations also involve the following issues:
promotion, reassignment, work conditions, harassment, age, and reprisal.
The agency determined that appellant's EEO Counselor contact with regard
to his complaint was untimely. The EEO Counselor's Report indicates
that appellant contacted the present EEO Counselor with regard to his
complaint on May 11, 1998.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
After a review of the record, we find that if appellant did, in fact,
contact EEO Counselors in 1993 and June 1994, portions of the allegations
in the complaint would be timely. However, there is no evidence in
the record to show whether appellant actually did contact those EEO
Counselors, and whether those individuals refused to provide him with EEO
counseling with regard to his complaint. Since the record is insufficient
with regard to these matters, we cannot determine the timeliness of his
complaint, and the case must be remanded for a supplemental investigation,
as set forth in the Order below.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
The Commission has held that an employee is aggrieved when one suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1997).
We note that the agency, in its decision, failed to address the
allegations regarding appellant's encounter with the identified EEO
Counselor in 1997, and the 1998 memo from that individual. Since we
consider the agency's omission of allegations as the dismissal of such,
we find that the subject allegations were properly dismissed since the
alleged incidents did not concern appellant's employment with the agency,
thereby failing to state a claim.
Accordingly, appellant's complaint, except the 1997 and 1998 incidents
alleged therein, is VACATED for a supplemental investigation, and the
case is REMANDED to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to conduct a supplemental investigation
as follows:
The agency shall include affidavits from the two EEO Counselors, whom
appellant identified in his complaint, indicating the specific date of
his contact and the content of their discussion during those meetings.
Based on the foregoing, the agency shall determine whether appellant's
EEO contact with regard to any and/or all of his remanded allegations
in the complaint was timely and shall issue a final agency decision
in accordance with 29 C.F.R. �1614.107(b) and/or process the remanded
allegations in accordance with the applicable regulations.
A copy of the final agency decision or a copy of the notice of processing
for the complaint must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
Sept. 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations