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
7
0120060558