01990192
08-27-1999
Frank A. Barone, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency.
Frank A. Barone v. Environmental Protection Agency
01990192
August 27, 1999
Frank A. Barone, )
Appellant, )
)
v. ) Appeal No. 01990192
) Agency No. 96-0061-R2
Carol M. Browner, )
Administrator, )
Environmental Protection )
Agency. )
______________________________)
DECISION
On October 7, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) received by his attorney
on September 10, 1998, pertaining to 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. In his complaint, appellant alleged
that he was subjected to discrimination in reprisal for prior EEO activity
when:
On September 20, 1995, appellant's supervisor proposed a fourteen (14)
day suspension, and appellant was ultimately suspended for ten (10)
days; and
On November 24, 1995, appellant was charged with eight (8) hours of
Absence Without Leave (AWOL).
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for stating the same claim previously decided
by the agency in Agency Number 96-0041-R2 (hereinafter complaint-1).
Alternatively, the agency dismissed appellant's complaint pursuant to
EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor contact.
Specifically, the agency found that appellant initially contacted a
counselor on January 25, 1996.
On appeal, appellant argues, through his attorney, that while he was
in counseling for complaint-1, the agency took the above retaliatory
action against him. Appellant contends that although his suspension was
proposed September 20, 1995, he did not learn of his actual suspension
until November 28, 1995, shortly after he began counseling in his prior
complaint. Appellant claims that he raised the allegations with the
counselor of complaint-1 on December 1, 1995, but that the counselor
told him that his new allegations would have to be addressed as a
separate complaint with a different counselor. Appellant argues that
the counselor of complaint-1 was the Acting EEO Manager, who assured
appellant that he would assign a counselor to contact appellant and
discuss the new allegations. Appellant contends that he was contacted
by the new counselor on January 25, 1996.
In response, the agency notes, inter alia, that the dismissal of
complaint-1 was appealed to the Commission. EEOC Appeal No. 01973431.
The record includes a copy of the Counselor's Report, dated October 31,
1996, which states that the complaint was assigned to the counselor by
the Acting EEO Manager on January 25, 1996. The counselor explains in
his report that, "the second complaint was as a result of new issues not
originally discussed in the initial complaint." The record also includes
a notice of suspension, dated November 28, 1995, which provides that
appellant would be suspended for ten (10) days as of December 4, 1995.
The record does not include a copy or any other direct evidence of
complaint-1.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same
claim that is pending before or has been decided by the agency or
Commission. However, the agency failed to provide a copy of the file
for complaint-1, or any information from complaint-1. The agency's
self-serving statements that the matters alleged in the present appeal
are identical to allegations decided in complaint-1 are insufficient.
Further, in EEOC Appeal No. 01973431 (March 29, 1999), the Commission
remanded complaint-1 to the agency because the allegations were not
properly defined. Thus, the agency failed to substantiate the basis
for its final decision. See Marshall v. Department of the Navy, EEOC
Request No. 05910685 (Sept. 6, 1991).
Regarding the agency's alternative grounds for dismissal, EEOC Regulation
29 C.F.R. �1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity
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 Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the forty-five (45) day limitation
period is triggered. See Ball v. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that allegation (1) occurred when his suspension
became effective, on December 4, 1996, not when suspension was threatened.
Appellant had a reasonable suspicion of discrimination with regard to
allegation (2) on November 25, 1996. Appellant's initial counselor
contact occurred when he attempted to raise the allegations in
complaint-1, on December 1, 1996, not when the acting EEO Manager
eventually assigned a counselor to handle the new allegations. Therefore,
appellant timely contacted a counselor within forty-five (45) days.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and appellant's
allegations are REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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:
August 27, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations