01a41367
01-14-2005
Lawrence R. Bowles, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Lawrence R. Bowles v. Department of the Navy
01A41367
1/14/2005
Lawrence R. Bowles,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A41367
Agency No. 00-65923-008
Hearing No. 140-2001-08026X
DECISION
Complainant initiated an appeal from the agency's final order concerning
his equal employment opportunity (EEO) complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record reveals that complainant, a Machinist at the agency's Cherry
Point, North Carolina facility, filed a formal EEO complaint on March 23,
2000, alleging that the agency discriminated against him on the basis
of age.
By letter to the complainant dated April 4, 2000, the agency accepted
the following claims for investigation:
on October 14, 1999, [complainant] was denied [computer numerical
control] CNC training; and
on November 5, 1999, [complainant was not] selected for the position
of Machinist, WG-3414, under Merit Staffing Vacancy Announcement
CP/99/3464/lph, a permanent position, and when [complainant] learned
that a co-worker [named agency employee] was selected because he received
CNC training two weeks prior to the selection.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
On June 30, 2003, the AJ dismissed claim (1) on the grounds of untimely
EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
Specifically, the AJ stated that complainant did not initiate EEO
Counselor contact within forty-five days from the date of the alleged
discriminatory event. The AJ further stated that the denial of training
and nonselection claims involved different agency officials and that
�complainant has failed to show that [these] issues are interrelated.�
In addition, on June 30, 2003, the AJ also issued a decision, without a
hearing, finding no discrimination regarding claim (2). The AJ found that
while complainant established a prima facie case of age discrimination,
the agency articulated a legitimate, nondiscriminatory reason for
its action.
In its final order dated August 20, 2003, the agency fully implemented
the AJ's decision.
On appeal, complainant states that it seems to be the agency's �mission�
to hire as many young people as possible. Complainant also submits,
on appeal, a copy of his response to the agency's motion for a decision
without a hearing. Therein, complainant asserts that he was more
qualified for the subject position than the selectee.
In response, the agency states that complainant's appeal is untimely.
Specifically, the agency states that the final order was served on
complainant on August 20, 2003, and that the agency received the signed
certified mail return receipt card on September 16, 2003; however,
complainant did not file his appeal with the Commission until December 19,
2003. In addition, the agency reiterates that the AJ properly dismissed
claim (1) for untimely EEO Counselor contact and that the AJ's finding
of no discrimination, regarding claim (2), is proper.
As a threshold matter, the Commission finds that complainant's appeal
is timely. The record contains a copy of a signed return receipt card
mailed to complainant's address of record which the agency asserts it
received back on September 16, 2003, and the card appears to be stamped
with the date of September 16, 2003.<1> However, the card does not
contain a date of delivery. In addition, the record contains a copy
of a second return receipt card signed by complainant which also does
not contain a date of delivery. Furthermore, on appeal, complainant
states that he received the final order on approximately November 20,
2003. While the agency acknowledges that it appears as if complainant
was re-served with a copy of the final order, the agency states that
it has been unable to ascertain why this occurred. Based on these
circumstances, the Commission is unable to determine when complainant
actually or constructively received the agency's final order; thus,
the Commission accepts the appeal as timely filed.
Claim (1)-Denial of Training
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.
Complainant claims that a younger employee received CNC training on
October 14, 1999, while he was previously denied CNC training by his
supervisor. The Commission finds that complainant should have reasonably
suspected discrimination on October 14, 1999, when complainant asserts
a younger employee received CNC training.
The Commission finds that the AJ's dismissal of claim (1), for untimely
EEO Counselor contact, was improper. The record contains a copy of a
letter from complainant dated October 29, 1999, to the Commission's
Headquarters in Washington, D.C.. Therein, complainant states �I feel
that I have been denied training on CNC machine tools because of my
age.� Complainant further states �I would like [the Commission] to look
into this matter and encourage [the agency]...to comply with federal
law.� The record also contains a response from an EEOC Administrative
Judge to complainant dated November 11, 1999. Therein, the AJ refers
to complainant's letter to the Commission, which the AJ states was
postmarked November 5, 1999. The AJ informed complainant that in order
to file an EEO complaint against a federal agency, complainant needs to
seek EEO counseling at his agency within forty-five days of the alleged
discriminatory event.
We are unable to ascertain from the record when complainant received this
letter from the Commission; however, the record reflects that complainant
contacted an EEO Counselor on December 20, 1999.
Contact with an EEOC District office or with an agency official who
is not an EEO Counselor, but who is logically connected to the process
is sufficient to constitute EEO contact, under certain circumstances.
See Johnston v. Department of Homeland Security, EEOC Appeal No. 01A41273
(May 20, 2004). In this matter, the Commission finds that complainant's
contact with the Commission via letter postmarked November 5, 1999,
constituted sufficient EEO Counselor contact because it was logically
connected to the EEO process and complainant expressed an intent to pursue
his claim that he was denied training. Because the contact occurred on
November 5, 1999, the date the letter to the Commission was postmarked,
according to the AJ's response, the contact was timely, having been
made within forty-five days from when complainant reasonably suspected
discrimination on October 14, 1999.
Claim (2)-Nonselection
The Commission determines that claim (2) is interrelated to claim
(1), discussed above. Specifically, in claim (1), complainant claimed
that he was denied computer numerical control CNC training. In claim
(2), which was the subject of the AJ's finding of no discrimination,
complainant claimed that he was not selected for an agency position.
Complainant claimed that a named co-worker was selected because two weeks
prior to his selection, the co-worker received CNC training, which was
the very training that complainant was purportedly denied in claim (1).
The Commission notes that the selecting official for the subject position
stated in a sworn declaration that �CNC training was not mentioned on
the [vacancy] announcement and [she] was not looking for it when [she]
made [her] selection;� however, complainant claims that the selectee was
selected because he received CNC training. Given the apparent nexus
between claims (1) and (2), the Commission determines that both claims
should be remanded and considered together as more fully outlined below.
Accordingly, we REVERSE the agency's final order implementing the AJ's
dismissal of claim (1). Regarding claim (2), we VACATE the agency's final
order, implementing the AJ's finding of no discrimination. This case
is REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC
District office to schedule a hearing, regarding claims (1) and (2),
within fifteen (15) calendar days of the date this decision becomes final.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification to
the Compliance Officer at the address set forth below that the request
and complaint file have been transmitted to the Hearings Unit.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
1/14/2005
Date
1This return receipt card is signed by someone
other than complainant who marked the box �agent.�