Melton F. Eason, Jr., Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0120060558 (E.E.O.C. Feb. 2, 2007)

0120060558

02-02-2007

Melton F. Eason, Jr., Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Melton F. Eason, Jr.,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120060558

Agency No. 41340400719

DECISION1

Complainant filed a timely appeal with this Commission from the agency's

decision, dated September 9, 2005, 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. In

his complaint, filed on July 19, 2004, complainant alleged that he was

subjected to discrimination on the bases of race (African-American), color

(Black), and reprisal for prior protected EEO activity.2 On August 3,

2004,3 complainant also submitted a "Statement of Claims," claiming:

(1) On July 1, 2004, he requested annual leave to attend class and was

told that the manning could not support the request.

(2) On July 3, 2004, a coworker (CW-1) worked overtime on the "B" shift,

but was allowed to go off base for 1 1/2 hours to get food, although

the manning dropped below the minimum requirement.

(3) On July 11, 2004, a coworker (CW-2) was allowed to leave base for

1 hour, although the manning dropped below the minimum requirement.

(4) On July 23, 2004, a coworker (CW-3) worked overtime in "B" shift.

From 0500 to 0800, CW-3 was allowed to go home on family sick leave.

The manning for that day dropped from 15 to 14, and no one filled his

position.

(5) On July 29, 2004, a coworker (CW-5) was allowed to go off base for

approximately 2 hours and solicit door prizes for the golf outing.

(6) Yearly appraisals were given out in April 2004. His appraisal was

considerably lower than that of his coworkers.

(7) April 6, 2004, he returned to "B" shift after he was placed on

"A" shift. Immediately, the Captain began discussing complainant's sick

leave and annual leave balances with him.4 Thereafter, he was required

to work 9 shifts in a row.

(8) On December 15, 2004, he agreed to switch shifts with a coworker.

Management, however, did not allow the shift switch to occur, resulting

in a personal hardship for complainant.

(9) In September 2003, he felt singled out when the Captain, who had seen

him walking around the fire station in his socks before, approached him

and told him to put on some shoes, while his coworkers were allowed to

walk around the fire station in house shoes without socks.

(10) In June 2003, management spoke to him about his use of sick leave

and informed him that his balance had to increase.

(11) In February 2003, a lieutenant required only African-American

employees to take out the Chief's trash or vacuum his floor during the

morning shift. The Chief noticed what was occurring, brought it to the

attention of management, and informed them that the actions could be

perceived as racial preference.

The record reveals that, on September 8, 2004, and May 10, 2005, the

agency issued two separate letters, informing complainant that more

information was necessary to process his complaint. The record further

reflects that complainant repeatedly emailed the EEO Manager and asked

whether more information was needed to process his complaint, and whether

the complaint was, in fact, being processed.

On September 9, 2005, the EEO Manager issued two decisions, dismissing

complainant's complaint. In the first decision, the agency stated

that complainant elected to pursue the claims through the negotiated

grievance procedure. Furthermore, the agency dismissed the complaint

stating that complainant failed to provide "the required documentation as

prescribed in 29 CFR 1614 (sic)." It noted that the Statement of Claims

was not presented to EEO until May 6, 2005. In the second decision, the

agency again dismissed the complaint because complainant "filed in two

forums," and failed to provide in "your statement of claims documentation

of specifics to support allegations. . ." The letter further stated,

among other things, "If your attempt to file a complaint and use color

or race [are] gimmicks to enhance yourself, these actions may be viewed

as self-aggrandizement...Your email points out that you are and were

seeking special treatment because of your minority identification.

The EEO office is not here to lead you or anyone else."5

The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an

agency may dismiss a complaint where the complainant has raised the matter

in a negotiated grievance procedure that permits claims of discrimination.

In the instant case, the record shows that complainant filed a grievance

concerning the matter identified in claim (6), involving complainant's

appraisal. Additionally, the record reflects that under the terms

of the agency's union agreement, employees have the right to raise

matters of alleged discrimination under the statutory procedure or the

negotiated grievance procedure, but not both. As the record indicates

that complainant elected to pursue the appraisal matter within the

grievance procedure, we find that the agency properly dismissed claim

(6) pursuant to 29 C.F.R. � 1614.107(a)(4).

EEOC regulation 29 C.F.R. � 1614.107(a)(7) requires an agency to dismiss

a complaint or a portion of a complaint for failure to cooperate, or

alternatively, to adjudicate the complaint if sufficient information for

that purpose is available. The regulation applies under the following

circumstances: (1) the agency has provided the complainant with a written

request to provide relevant information or to otherwise proceed with the

complaint; (2) the request included a notice of the proposed dismissal

for failure to respond within 15 days of receipt of the request; and (3)

the complainant either fails to respond to the request within 15 days

of receipt or the complainant's response does not address the agency's

request. The Commission has further held that the regulation is applicable

only in cases where there is a clear record of delay or contumacious

conduct by the complainant. See Card v. United States Postal Service,

EEOC Request No. 05970095 (April 23, 1998); Anderson v. United States

Postal Service, EEOC Request No. 05940850 (February 24, 1995).

In the present case, the record reveals that the agency provided

complainant with two written requests to provide relevant information or

to otherwise proceed with the complaint, and that the requests included

notice of the proposed dismissal for failure to respond. However,

we disagree with the agency's finding that the whole of complainant's

complaint should be dismissed for failure to cooperate. Although the

agency contends that complainant failed to provide the additional

information requested, the record contains the Statement of Claims,

dated August 3, 2004, which identifies specifics incidents of alleged

discrimination. Moreover, the record reflects that complainant sent

emails to the EEO Manager in which he repeatedly asked whether more

information was required to process his complaint, but the EEO Manager

failed to request further information. The agency asserts that it did

not receive the Statement of Claims, dated August 3, 2004, until May 6,

2005. However, in light of the date affixed to the Statement, as well as

complainant's emails to the agency, inquiring into the agency's need for

more information, the Commission finds that complainant timely provided

sufficient information to the agency to allow for the processing of his

claims. Finally, we note that a clear record of delay or contumacious

conduct by complainant in the adjudication of his complaint does not

exist in the present case. Accordingly, complainant's claims cannot be

dismissed pursuant to 29 C.F.R. � 1614.107(a)(7).

To the extent that complainant alleged that he was subjected to

disparate treatment and/or harassment by the agency in 2003, we find

that those events were untimely raised. An aggrieved person is required

to initiate contact with an EEO counselor within 45 days of the date of

the 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)(1). A complainant alleging a hostile work environment will not

be time barred if all acts constituting the claim are part of the same

unlawful practice and at least one act falls within the filing period.

See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

In the present case, complainant failed to assert that the incidents

in claims (9) through (12) were part of the same unlawful practice by

the agency such that a continuing violation of hostile work environment

could be asserted. Moreover, he did not seek EEO counseling until more

than 45 days after the incidents described in said claims. Accordingly,

claims (9) through (11) are hereby dismissed.

Therefore, based upon the record before us, we find that complainant's

claims shall be identified as whether he was discriminated against and/or

subjected to a hostile work environment when:

(1) In mid-2004, complainant was treated differently than his

coworkers, who were not members of his protected classes, when he

was not allowed to utilize annual leave to attend classes because the

manning allegedly could not support the request, whereas his coworkers

were allowed to leave the base or take annual/sick leave, despite the

manning dropping below the required minimum. See Claims (1) through

(5), supra.

(2) On April 6, 2004, after he returned to "B" shift, the Captain

began questioning complainant's sick leave balance and annual leave

balance, and required him to work 9 shifts in a row. See Claim (7),

supra.

(3) On December 15, 2004, he agreed to switch shifts with a coworker.

Management, however, did not allow the shift switch to occur, resulting

in a personal hardship for complainant. See Claim (8), supra.

The agency is advised that, where an aggrieved person seeks EEO

counseling, the Counselor must ensure that the complainant understands

his rights and responsibilities in the EEO process. Furthermore, the

Counselor must advise the aggrieved person about the EEO complaint

process under 29 C.F.R. Part 1614. Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 2

(November 9, 1999). In other words, the agency is required to lead a

complainant through the EEO process.

For the foregoing reasons, the decision of the agency is affirmed, in

part, and reversed, in part. Claims (1) through (3), as defined by the

Commission, are remanded for further processing in accordance with this

decision and the Commission's Order set forth below.

ORDER (E0900)

The agency is ordered to process the remanded claims, claims (1) through

(3) as defined by the Commission, 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

_____ 2-2-07_____________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 The record is unclear as to whether complainant engaged in prior EEO

activity, such as opposing an action he believed was unlawful under

Title VII, the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.; Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.;

or the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. The

agency should seek relevant information from complainant during the

investigation regarding this basis of discrimination.

3 In its decision, the agency states that the Statement of Claims was

submitted on May 6, 2005. However, the document is dated August 3, 2004,

and complainant contends that the EEO Manager already possessed a copy

of the document on May 6, 2005, contrary to the agency's representation.

See Questions regarding My EEO Complaint, dated September 23, 2005.

4 Complainant explained that he used between 6 and 8 hours of leave per

pay period in order to attend college courses relevant to his position.

5 The decision revealed that complainant had previously entered the EEO

Manager's office in a manner that he considered very unprofessional.

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4134040719

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120060558