01983482
06-16-1999
Charles E. Walker, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Charles E. Walker v. Department of the Army
01983482
June 16, 1999
Charles E. Walker, )
Appellant, )
)
v. ) Appeal No. 01983482
) Agency No. BHAAFO9604G0210
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 et seq. The final agency decision
was issued on February 26, 1998. The appeal was postmarked March 28,
1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
On March 20, 1996, appellant initiated contact with an EEO Counselor.
In a thirteen-page informal complaint, appellant alleged that the agency
continuously treated him differently than white and Hispanic employees
regarding the HEARTS program; requests for information; the processing
of his previous EEO complaint; access to computer files; renovations
to his former office, opportunities to rate and recognize personnel;
promotions; and assignments. The informal complaint was divided into
three sections. The first section was entitled "Issues that I think
were covered and allowed in first EEO case," and contained twenty-four
examples of purportedly unequal treatment, discipline, and support
from agency management. The second section was entitled "Management's
continuing actions and lack of actions . . . that should have but may
not have been covered in the first case," and contained five examples
of alleged discrimination. The third section was entitled "Issues to
be covered in second EEO case pertain to things that occurred before
and/or during the processing of my first EEO case" and contained forty
examples of alleged discrimination.
On April 1, 1996, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the bases of
race and age, as referenced in his informal complaint.
On June 3, 1996, the agency issued a final decision, dismissing
appellant's complaint for failure to timely contact an EEO Counselor.
Without defining the allegations raised in appellant's formal complaint,
the agency determined that the alleged discriminatory incidents occurred
between April and December 1995, which was more than forty-five days
from the date that appellant first contacted an EEO Counselor.
Following appellant's appeal from the final agency decision, the
Commission found that the agency failed to sufficiently identify
the precise allegations raised in appellant's formal complaint. The
Commission reversed the agency's dismissal of appellant's complaint,
and remanded it to the agency for further processing. The agency was
ordered to issue a final decision precisely defining each allegation
raised in appellant's complaint, including the dates of occurrence.
If any allegations were dismissed, the agency was further ordered to list
all allegations being dismissed and provide the grounds for dismissal.
Walker v. Department of the Army, EEOC Appeal No. 01965343 (January 15,
1998).
On February 26, 1998, the agency issued the final decision that is the
subject of the instant appeal. Therein, the agency determined that
appellant's complaint was comprised of three allegations, that were
identified in the following fashion:
1. Appellant received unequal treatment, unequal support and unequal
discipline as compared to the type or level provided white and/or Hispanic
employees (especially females).
2. Appellant was subjected to management's continuing actions and lack
of actions, as compared to white, Hispanic and female employees.
3. Appellant has been subjected to reprisal and things that occurred
before and/or during the processing of his first EEO complaint.
Regarding allegation 1, the agency noted the thirteen-page informal
complaint discussed above, and found that appellant provided therein
twenty-four examples of alleged discriminatory activities. The agency
determined that appellant had admitted that these twenty-four matters
were covered in a formal complaint filed on July 27, 1995. The agency
dismissed this allegation for failure to state a claim and for failure
to timely contact an EEO Counselor.
Regarding allegation 2, the agency found that in the informal complaint,
appellant provided five examples of alleged discriminatory activities.
The agency found that the five examples relate to a performance appraisal
received by appellant on May 4, 1995. The agency dismissed allegation
2 on the grounds that the matters contained therein were raised in a
previously filed EEO complaint, and specifically noted that the five
examples were raised in a complaint appellant filed on July 27, 1995.
The agency also dismissed allegation 2 on the grounds of untimely EEO
Counselor contact, and for failure to state a claim.
Regarding allegation 3, the agency found that appellant provided forty
examples of discriminatory activity taken against him. The agency
addressed some of these examples, and dismissed allegation 3 for failure
to state a claim and on the alternative grounds of failure to timely
contact an EEO Counselor. The agency further determined that allegations
1 - 3 were not part of a continuing violation.
The prior decision dated January 15, 1998, the Commission directed
the agency to issue a new final decision and to precisely define each
allegation raised in appellant's formal complaint, including dates of
occurrence. We find that the manner in which the agency addressed the
allegations contained in the final decision that is the subject of the
instant appeal falls short of articulating the allegations as ordered
by the Commission. We note that appellant's formal complaint, which
references his informal complaint, is comprised of three headings, which
encompass over sixty separate discriminatory incidents. In its final
decision, the agency merely identified each of the three headings as an
allegation, with occasional references to the separate discriminatory
incidents that appellant listed under each heading. We find that the
agency again did not clearly and precisely define the allegations in
appellant's formal complaint.
Accordingly, the agency's decision to dismiss appellant's complaint is
VACATED. The complaint is REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to process appellant's complaint in accordance
with 29 C.F.R. Part 1614 and the provisions herein. Specifically,
the agency shall take the following actions"
1. The agency shall issue a final decision precisely defining the
allegations in appellant's complaint. The final decision must explicitly
define all of the allegations in the complaint, and not merely identify
allegations under broad headings, i.e., "appellant received unequal
treatment and support" or "appellant has been subjected to reprisal
and thins that occurred" before and during the processing of a prior
EEO complaint. The agency shall not dismiss allegations de facto by
failing to define or to address allegations.
2. The agency shall notify appellant in writing of all allegations,
if any, that it is accepting for investigation. If the agency dismisses
any allegations, it must issue a final decision doing so. Such a final
decision must list all allegations being dismissed, provide the grounds
for dismissal, and notify appellant of his appeal rights.
The agency shall complete all of the above actions within fifteen (15)
calendar days of the date that this decision becomes final. A copy of
any acceptance letter and/or final agency decision 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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 filed your
appeal with the Commission. 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.
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:
June 16, 1999
_________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations