0120073037
09-11-2007
Chris C. Coleman, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Chris C. Coleman,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073037
Agency No. ARTYAD07FEB00610
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 15, 2007, dismissing his complaint of 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the
Commission finds that complainant's complaint was improperly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2).
On February 9, 2007, complainant initiated contact with an Equal
Employment Opportunity (EEO) Counselor alleging that he was subjected
to discrimination on the bases of race (African-American), disability
(ankle, foot, neck & back conditions, migraine headaches, and a pain
syndrome), and age (over 40) when the agency (1) terminated his employment
on February 6, 2007, (2) required him to perform duties outside of his
position description, and (3) subjected him to hostile work environment
harassment.
To support his harassment claim, complainant alleged that (3a) on April
6, 2006, a Section Chief (S1) did not allow him to obtain a military or
forklift driver's license, (3b) in October 2006, S1 did not allow him to
attend training at DAU (Log 101), (3c) in June 2006, a contractor (C1)
informed complainant's supervisor that complainant failed to properly
document data in the "Repair Data System," (3d) in April 2006, C1 used
complainant's workspace to "housebreak" his dog and S1 was fully aware of
said use, and (3e) on August 31, 2006, a snake attacked complainant and
a coworker and management failed to take action until the Occupational
Health and Safety Administration intervened.
Subsequently, complainant filed a formal EEO complaint alleging that the
agency subjected him to harassment. He cited the actions alleged in
(3a) through (3e). For relief, complainant requested removal of the
termination personnel action from his file, re-employment, promotion
with back-pay, and compensatory damages. Also, in pertinent part, he
listed a witness who would speak to the agency's attempt to terminate
her without giving a reason.
In its May 15 final decision, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely initial contact with
an EEO Counselor. The agency cited (3a) through (3e) as complainant's
claim of discrimination. The instant appeal from complainant followed.
On appeal, complainant stated that the agency failed to address (1)
and (2), which were timely claims, in its final decision and that,
under a continuing violation theory, those claims would have made
the remaining claims timely. In opposition, the agency stated that
complainant abandoned (1) and (2) when he did not indicate them on his
formal complaint and that it dismissed (3a) through (3e) appropriately.
As an initial matter, we find that complainant did not abandon claim
(1), his termination, in his formal complaint. A fair reading of the
complaint in its entirety indicates that complainant sought to grieve
his termination, as he requested removal of his termination record from
his file and reemployment, and planned to present a witness to speak to
past termination practices of the agency. As such, we find that the
agency failed to address (1), which we consider a dismissal of (1),
and it did so inappropriately.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �� 1614.105, 1614.106 and
1614.204(c), unless the agency extends the time limits in accordance
with � 1614.604(c), or that raises a matter that has not been brought
to the attention of a Counselor and is not like or related to a matter
that has been brought to the attention of a Counselor. Regulation 29
C.F.R. � 1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within forty-five (45) days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002). In the case at hand, we find that complainant
alleged hostile work environment harassment when he initiated contact
with an EEO counselor on February 9, 2007 and that he provided (1),
his termination on February 6, 2007, as evidence to support his claim of
discrimination. Further, we find that complainant alleged (2) through
(3e) as further incidents to support his claim. We find that (1) falls
within the 45-day filing period and renders timely complainant's claim
of harassment, inclusive of incidents (2) through (3e). Upon careful
review of the record and based on the above, the Commission REVERSES
the agency's final decision and REMANDS it consistent with this decision
and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
September 11, 2007
__________________
Date
2
0120073037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073037