01a35363_r
02-12-1992
Joseph M. Santos, Complainant, v. Spencer Abraham, Secretary, Department of Energy Agency.
Joseph M. Santos v. Department of Energy
01A35363
April 15, 2004
.
Joseph M. Santos,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy
Agency.
Appeal No. 01A35363
Agency No. 03-0040HQ
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 27, 2003, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On December 24, 2002, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
In his formal complaint, dated April 16, 2003, complainant alleged that
he was subjected to discrimination on the bases of race, national origin,
sex, color, and age.<1>
In its final decision, determined that complainant's complaint was
comprised of the following three claims:
[complainant] received a marginal performance rating for fiscal year
2002;
[complainant] received a proposed three-day suspension; and
[complainant was] sexually harassed by [his] supervisor.<2>
The agency dismissed claims (1) - (3) on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically,
the agency determined that the date complainant was allegedly
discriminated against was October 30, 2002, and that complainant's
initial EEO Counselor contact on December 24, 2002 was untimely.
The agency also dismissed claim (2) on the alternative grounds of
alleging a proposal to take a personnel action, pursuant to 29 C.F.R. �
1614.107(a)(5).
On appeal, complainant argues asserts that he is being subjected to
a continuous hostile work environment, and that the dismissal of his
complaint for untimely EEO Counselor contact is improper.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Claim (1) - Performance Rating
In his formal complaint, complainant claimed that he was purportedly
given an �improper cash proffer� by his supervisor upon receipt of his
marginal performance rating. However, complainant also states therein
that he is excluding the issue regarding the offer of cash from his
EEO case. Thus, the Commission finds that claim (1) solely involves
the issue of complainant's receipt of a marginal performance rating.
The Commission finds that claim (1) was properly dismissed for untimely
EEO Counselor contact. In his formal complaint, complainant stated
that on October 30, 2002, he received a �marginal� annual rating for his
performance from his supervisor. Complainant stated that his supervisor
also gave him $150 in cash, which prompted him to ask his supervisor,
�[w]hy do you give me cash but also give me a poor performance rating?�
Complainant further stated that he �immediately reported this unusual
occurrence� to a union representative. The Commission determines
that complainant reasonably suspected discrimination when he received
his performance rating on October 30, 2002. Moreover, in regard to
complainant's assertion that this action was part of a hostile work
environment, we determine that this matter was a discrete action was
is not amenable to analysis as part of a continuing violation.
Claims (2) - (3) Proposed Three-Day Suspension and Sexual Harassment
Claim
The Commission determines that the agency improperly dismissed claims
(2) and (3) for untimely EEO Counselor contact. In its final decision,
the agency stated that the date of the alleged discrimination was October
30, 2002; however, in his formal complaint, complainant stated that he
received a memorandum for the proposed suspension, claim (2), on March 31,
2003, which was subsequent to his initial EEO contact in December 2002.
Furthermore, the record contains a memorandum to complainant dated March
31, 2003, regarding the proposed suspension. In regard to claim (3),
complainant does not specify an incident date in his formal complaint.
In addition, the Commission finds that the agency improperly dismissed
claim (2) for alleging a proposal to take a personnel action. We find
with regard to claims (2) and (3) that the agency improperly fragmented
complainant's claims. In complainant's formal complaint, complainant
claimed that he is being subjected to a hostile work environment.
Specifically, complainant stated that �[t]his ongoing hostile environment
has included denial of training opportunities, manipulation of work
assignments, and constant disparagement.� Regarding claim (3),
complainant stated in his formal complaint that his supervisor has
called him into her office to discuss personal issues and has contacted
him at home. Moreover, on appeal, complainant states that the hostile
work environment includes, but is not limited to, the proposed three-day
suspension.
On appeal, complainant states that the ongoing hostile environment
consists of new incidents which include, but are not limited to, a
detail to the Office of Information Technology since May 6, 2003, and
complainant's proposed involuntary separation from agency employment.
We determine that claims (2) and (3), when viewed in conjunction with
complainant's assertions on appeal, are sufficient to state a hostile
work environment claim. See Cervantes v. USPS, EEOC Request No. 05930303
(November 12, 1993).
Accordingly, the agency's decision dismissing claim (1) is AFFIRMED.
The agency's decision dismissing claims (2) and (3) is REVERSED.
Those claims, as defined herein as a hostile work environment claim,
are REMANDED to the agency for further processing in accordance with
this decision and applicable regulations.
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 (T0900)
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 (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
April 15 ,2004
__________________
Date
1We note that the agency did not indicate,
in its final decision, that complainant also filed his complaint on the
bases of age and national origin, though complainant stated those bases
in his formal complaint. The agency is reminded that it must clearly
and explicitly reject issues or bases, and offer appeal rights regarding
them, in order to have such claims stated in a complaint dismissed.
See Jozelin v. Department of Veterans Affairs, EEOC Appeal No. 01920040
(February 12, 1992).
2The agency's final decision contains a footnote after the third claim;
however, there is no text that corresponds to this footnote.