01985288
06-06-1999
James Hardy, Appellant, v. Earl A. Powell, III, Director, National Gallery of Art, Agency.
James Hardy, )
Appellant, )
)
v. ) Appeal No. 01985288
)
Earl A. Powell, III, )
Director, )
National Gallery of Art, )
Agency. )
___________________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or 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 Commission hereby accepts the appeal in
accordance with EEOC Order No. 960.001.
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to initiate contact with an EEO counselor in a
timely manner.
The record reveals that appellant filed a formal equal employment
opportunity (EEO) complaint with the agency on January 12, 1998, alleging
he had been discriminated against by agency officials on the bases of his
race (Black) and sex when he received a three-day suspension, effective
July 28-30, 1997, for being in possession of an alcoholic beverage at an
office party while on duty. In his complaint, appellant noted that he was
treated less favorably than a Caucasian female employee who admitted to
bringing alcoholic beverages to an office function on December 22, 1996.
In addition, appellant alleged that the agency selectively permitted
the possession and consumption of alcoholic beverages by employees on
certain special occasions, and that some Caucasian agency employees
were allowed to advertise and distribute invitations to a "margarita
party" in their division.<1> In his complaint, appellant additionally
alleged that agency officials unlawfully retaliated against him by
verbally reprimanding him in a grievance meeting on November 13, 1997,
for his appearance on a television news program concerning the agency,
and because of his prior EEO activity against the agency.
The record establishes that appellant first contacted an EEO counselor
regarding these matters on December 10, 1997, and was issued a notice
of his right to file a formal EEO complaint on December 29, 1997.
By final decision dated June 5, 1998, the agency dismissed appellant's
complaint for failure to bring these matters to the attention of an EEO
counselor in a timely manner. It is from this decision that appellant
now appeals.
EEOC regulation 29 C.F.R. �1614.107(b) requires agencies to dismiss a
complaint, or portion of a complaint, which fails to comply with the
time limitations set forth in 29 C.F.R. �1614.105(a). EEOC regulation
�1614.105(a)(1) requires that an aggrieved individual initiate contact
with an EEO counselor within 45 days of the date of matter alleged to
be discriminatory or, in the case of a personnel action, within 45 days
of the effective date of the action. 29 C.F.R. �1614.105(a)(2) further
provides that the agency or the Commission shall extend the 45-day time
limit when the individual shows that he or she: (1) was not notified of
the time limits and was not otherwise aware of them; (2) did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred; and (3) despite due diligence was prevented
by circumstances beyond his or her control from contacting the counselor
within the time limits.
Upon careful review of the record, as well as consideration of the
parties' statements on appeal, the Commission first finds that the record
supports the agency's finding that appellant's first contact with an
EEO counselor concerning his suspension was significantly beyond the
45-day time limitation set forth in the Commission's regulations. Not
only was the suspension effective over five months prior to appellant's
EEO contact, the record also establishes that appellant was fully aware
of the other facts supporting his claim of disparate treatment before he
sought EEO counseling.<2> Noting that appellant failed to provide any
justification for his untimeliness either to the agency or on appeal,
the Commission affirms the dismissal of this issue<3> for failure to
contact an EEO counselor in a timely manner.
However, the Commission finds that the agency erred in dismissing
appellant's retaliation allegation concerning the verbal reprimand he
received at a meeting on November 13, 1997. While the agency asserts
that appellant did not raise this specific issue with the EEO counselor,
the Commission finds that the allegation's factual basis is sufficiently
"like or related" to concerns raised with the EEO counselor. See 29
C.F.R. � 1614.107(b). The EEO Counselor's report reveals that appellant
discussed with the counselor his belief that management had stigmatized
him because of his November 1996 appearance on a television news program
and his prior EEO activity. The oral reprimand issued was clearly
raised in appellant's formal complaint of an example of that stigma.
Therefore, the Commission finds that the agency should have remanded
the oral reprimand issue for counseling rather than dismissing it.
See Zukowski v. Department of Defense, EEOC Request No. 050980968
(March 11, 1998); Quirk v. United States Postal Service, EEOC Request
No. 05940823 (June 8, 1995).
Accordingly, the agency's final decision is AFFIRMED with regard to its
dismissal of the allegations concerning the suspension. With respect
to the oral reprimand issue, the agency dismissal is REVERSED and that
allegation is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency is ORDERED to commence pre-complaint counseling of appellant's
allegation concerning the November 13, 1997 verbal reprimand in accordance
with 29 C.F.R. �1614.105. The agency shall acknowledge to the appellant
that it has received the remanded allegation and make the counseling
referral within thirty (30) calendar days of the date this decision
becomes final.
A copy of the agency's letter of acknowledgment to appellant and
counseling referral 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. � l6l4.604(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 an 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 EIGHTY (180)
CALENDARS 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 6, 1999
_________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 While the agency's final decision characterized appellant's allegations
as three separate issues, a fair reading of his complaint indicates that
they were really part of the same allegation of disparate enforcement
of the agency's no-alcohol policy resulting in appellant's suspension
in July 1997.
2 By his own admission, appellant was aware of the December 1996
incident involving the Caucasian female employee, the advertising of
the "margarita party," and the selective tolerance of the consumption
of alcoholic beverages on special occasions at the time he was issued
his suspension. See also, suspension letter dated July 21, 1997, which
addressed appellant's allegations of disparate treatment.
3 Characterized by the agency as Issues A, B and C. See footnote no. 1
of this decision.