01991262
11-08-1999
Henry Rose, Jr., Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Henry Rose, Jr. v. Department of Defense
01991262
November 8, 1999
Henry Rose, Jr., )
Appellant, )
)
v. ) Appeal No. 01991262
) Agency No. XQ-98-033
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
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. The final agency decision was received by
appellant on November 4, 1998. The appeal was postmarked December 2,
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.
Appellant contacted an EEO counselor on May 26, 1998, regarding
allegations of discrimination. Informal efforts to resolve his concerns
were unsuccessful.
On July 3, 1998, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of
reprisal.
On October 22, 1998, the agency issued a final agency decision (FAD0
that accepted for investigation the following allegation:
On March 26, 1998, appellant was treated differently from another
employee when the agency denied him a transfer and the option to work
in a hostile-free, non-biased work environment.
The FAD also identified the following three allegations:
(a) on January 6, 1998 he was advised that he no longer had a position
and should seek employment elsewhere;
(b) since July 1997, the agency has refused to recognize his medical
diagnosis; and
(c) since July 1997, the agency has not accommodated his disability.
The FAD dismissed allegations (a), (b) and (c) for failure to timely
contact an EEO Counselor and for stating the same claim that is pending
before or has been decided by the agency. Specifically, the agency
determined that allegation (a) regarding appellant's January 6, 1998
removal from the agency had not been timely brought to the attention of an
EEO Counselor. The FAD found that appellant's EEO contact on May 26, 1998
was 38 days beyond the applicable time limit for seeking counseling.
In its FAD, the agency also determined that allegations (b) and (c)
stated the same claims that had previously been decided by the agency
in case No. XL-98-005 filed by appellant on October 27, 1997. The FAD
indicates also that appellant later withdrew complaint No. XL-98-005
pursuant to a July 27, 1998 agreement.
In his statement on appeal, appellant maintains that allegations (b) and
(c) are not the same issues as those previously addressed by the agency
pursuant to complaint No. XL-98-005. Appellant offers no explanation
for his delay in seeking counseling regarding allegation (a).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the 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 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. USPS, 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 agency dismissed allegation (a) regarding appellant's removal on the
grounds that he failed to timely initiate contact with an EEO Counselor.
Appellant's counselor contact on May 26, 1998 was four months after his
removal from the agency in January 1998. Appellant does not indicate
that he was unaware of the time limits for counselor contact, nor does
he indicate that he was prevented for any reason from timely seeking
counseling regarding his removal. In that regard, we find that appellant
has presented no persuasive explanation to extend the time period for
counselor contact pursuant to 29 C.F.R. �1614. 604(c). It is the decision
of this Commission that the agency's decision dismissing allegation (a)
as untimely was proper.
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.
In the instant matter, the agency dismissed allegations (b) and (c)
of appellant's complaint on the grounds that they had been raised by
appellant in agency case No. XL-98-005. The record contains a copy of
prior complaint No. XL-98-005 filed by appellant on October 20, 1997.
Therein, appellant alleges that on or about September 30, 1997 the agency
discriminated against him when it disregarded the physical restrictions
imposed by his doctor.
In the instant complaint, appellant alleges, inter alia, that the agency
has over time refused to honor the professional diagnosis and prognosis
of his medical physicians. Appellant's complaint further alleges that
the agency has denied him medical relief. In a letter from the agency
dated August 3, 1998, appellant was asked to supplement his complaint with
specific information clarifying the issues raised therein. On August 21,
1998, appellant responded to the agency's request and stated that the
agency has since July of 1997, failed to accommodate his disability.
Upon review of the instant complaint, it appears that appellant
is claiming ongoing discrimination. By contrast, appellant's prior
complaint No. XL-98-0005, focuses on a specific incident occurring in
September 1997, rather than an allegation of ongoing discrimination as is
alleged by appellant in allegations (b) and (c) of the instant complaint.
We are therefore not persuaded by the agency's argument that allegations
(b) and (c) of the instant complaint address the same claim as that
raised by appellant in case No. XL-98-0005.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996). It is the
decision of the Commission that the decision of the agency dismissing
allegations (b) and (c) for stating the same claim previously decided
was improper.
CONCLUSION
Accordingly, the agency's decision dismissing allegation (a) of
appellant's complaint for untimely EEO Counselor contact is AFFIRMED.
The agency's decision dismissing allegations (b) and (c) on the grounds
that they raised issues previously decided by the agency is REVERSED.
Allegations (b) and (c) are REMANDED to the agency for processing in
accordance with this decision and the Order below.
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 (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 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. 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:
11/08/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations