closed0120110525
05-10-2011
Christian A. Ikeanyi, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Christian A. Ikeanyi,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120110525
Agency No. DOS-F-116-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated September 28, 2010, 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisory Auditor
at the Agency’s Office of Inspector General in Arlington, Virginia.
On August 10, 2010, Complainant filed a formal complaint.
In its final decision dated September 28, 2010, the Agency dismissed
Complainant’s formal complaint on the grounds that it was untimely
filed. The Agency stated that Complainant received the Notice of Right
to File a formal complaint on July 16, 2010, but did not file a formal
complaint until August 10, 2010, outside the applicable time period.
CONTENTIONS ON APPEAL
On appeal, Complainant states “my formal complaint was not for the
earlier case that closed July 16, 2010, I didn’t file a formal complaint
for that case. I filed two new formal complaints for the discrimination
that occurred on July 29, 2010 for the mid year review and August 24,
2010 for the downgrade.” In addition, Complainant asserts that he
filed these matters within 45 days of each occurrence.
ANALYSIS AND FINDINGS
The record contains a copy of an EEO Counselor’s Report (Report).
Therein, the Report reflects that Complainant received EEO Counseling
pertaining to a memorandum dated April 30, 2010, related to his
performance. The record also contains a Notice of Right File a
Discrimination Complainant dated July 16, 2010 (Notice). The Notice
provides that the allegation at issue was the April 30, 2010 memorandum.
Complainant signed for the receipt of the Notice on July 16, 2010.
The record also contains two formal complaint forms. One formal complaint
form is dated August 10, 2010, which pertains to a mid year review which
Complainant received.1 The date of the alleged discrimination is listed
as July 29, 2010. The record also contains a formal complaint form
dated August 24, 2010, which pertains to Complainant’s downgrade.2
The date of the alleged discrimination is listed as August 24, 2010.
To the extent that Complainant’s August 10, 2010 formal complaint is
construed as a formal complaint regarding the April 30, 2010 memorandum
for which he received EEO Counseling, we find that the Agency properly
dismissed this matter on the grounds that the formal complaint was
untimely filed. EEOC Regulation 29 C.F.R. § 1614.106(b) requires the
filing of a written complaint with an appropriate agency official within
fifteen (15) calendar days after the date of receipt of the notice of the
right to file a formal complaint. The Notice informed Complainant that
he had fifteen days from the date of receipt of the Notice in which to
file a formal complaint. The record further reflects that complainant
did not file a formal complaint within fifteen days of his receipt of
this Notice but, instead filed a formal complaint on August 10, 2010.
However, based on a fair review of the record, we find that Complainant
was attempting, in part, to initiate EEO Counselor contact for two new
alleged incidents of discrimination (mid-year review and downgrade) when
he completed the formal complaint forms dated August 10, 2010 and August
24, 2010. We note that complainant listed the respective dates of these
alleged discriminatory incidents as July 29, 2010 and August 24, 2010.
Thus, due to the short time period between the alleged discriminatory
incidents and the date of the “formal complaints”, it is unlikely that
Complainant underwent EEO Counseling on these matters. The record also
does not contain any EEO Counselor Reports or Notices of Right to File a
Formal Complaint for these matters. Thus, we find that the Agency should
have construed these “formal complaints” pertaining to the mid-year
review and the downgrade as an initiation/request for EEO Counseling.
CONCLUSION
Accordingly, to the extent Complainant filed a formal complaint on the
April 30, 2010 memorandum, we AFFIRM the Agency’s dismissal of this
matter. However, we REMAND the other two matters (mid-year review and
downgrade) to the Agency for further processing in accordance with the
Order below.
ORDER
(1) Within thirty (30) calendar days from the date this decision becomes
final, the Agency shall take the following actions: continue processing
the remanded claims (mid-year review and downgrade) from the point
processing ceased. The Agency shall acknowledge to Complainant that it
has resumed processing the remanded claims.
(2) The Agency shall submit a report regarding the ordered actions to
the Compliance Officer in accordance with the paragraph below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency’s final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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.
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 10, 2011
Date
1 In his August 10, 2010 formal complaint, Complainant listed race and
national origin as the bases of his complaint.
2 In his August 24, 2010 formal complaint, Complainant listed race,
national origin, and reprisal for prior protected activity as the bases
of his complaint.
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0120110525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110525