01A04661_r
09-18-2002
Nasser Roman, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Nasser Roman v. Department of the Army
01A04661
September 18, 2002
.
Nasser Roman,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04661
Agency Nos. BASFO902J0200
GFASFO9902J0160
Hearing No. 170-A0-8080X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 22, 2000, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
The record reflects that in October 1997, complainant, an agency police
officer, and an agency supervisor had an altercation that resulted in
complainant sustaining an emotional reaction that required medication.
The record further reflects that in a letter dated May 5, 1998, a
physician advised complainant that he was not to carry firearms, and that
as a consequence, the agency assigned him to the agency Visitor's Center.
Following an investigation of the October 1997 altercation, and in
correspondence issued on January 15, 1998, the agency indicated that it
properly handled the incident. The agency indicated in the letter that
the supervisor would not be disciplined and further that �the record
contains evidence of a hostile work environment.� Following receipt
of this letter, complainant initiated EEO Counselor contact on February
18, 1998, and thereafter filed the first of the two subject complaints.
In the first complaint, complainant alleged that his supervisor physically
assaulted him and subjected him to a hostile and abusive work environment.
Complainant further alleged that the agency �knew or should have known
of this conduct and failed to take immediate and appropriate corrective
action.�
The record further reflects that complainant was issued a letter of
separation on September 9, 1998. The agency indicated that his term,
which was due to expire at the end of September 1998, would not be
renewed because complainant could not perform his job (carry a gun).
The record reflects that complainant thereafter obtained medical
evidence reflecting his ability to perform his job and the agency did
not thereafter separate him from agency employment. According to the
agency, complainant was kept working and kept in grade during the entire
period, and returned to full duty in October 1998, with no loss of pay.
Thereafter, complainant filed the second of the two instant complaints.
In the second complaint, complainant alleged that the agency subjected
him to discrimination on the bases of race (Caucasian), disability
(mental depression), and in reprisal for prior EEO activity when it
issued him the letter of separation identified above.
Following an investigation of the subject complaints, the matters were
referred to an Administrative Judge (AJ) of the Commission. The AJ
dismissed both complaints. Regarding the first complaint discussed
above, the AJ determined that complainant had or should have had a
reasonable suspicion of unlawful employment discrimination in October
1997, and that his EEO Counselor contact was untimely. Regarding the
second complaint, the AJ determined that it failed to state a claim,
as complainant suffered no break in work or loss of pay.
On May 22, 2000, the agency issued a final order that is the subject of
the instant appeal. The agency implemented the AJ's decision.
As a threshold matter, the Commission determines that the matters
raised in the instant complaint should be viewed as a comprehensive
claim of harassment that commenced in October 1997 and culminated in
the agency's consideration of terminating complainant's employment in
September 1998. The Commission notes that although the agency ultimately
restored complainant to a police officer position, complainant alleged
that by initially denying him an extension of his employment term and by
transferring him into a position outside of law enforcement, the agency
engaged in unlawful discrimination and harassment. Complainant further
alleged harassment when the agency failed to adequately investigate
the actions of his supervisor in the altercation of October 1997.
As such, we determine that complainant states an actionable hostile
work environment claim. See Ferguson v. Dept. of Justice, EEOC Request
No. 05970792 (March 30, 1999).
Further, 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.
Upon review, the Commission finds that the agency improperly dismissed the
first complaint for untimely EEO Counselor contact. The first complaint,
when considered in conjunction with the matters identified in the second
complaint can be construed as part of a single hostile work environment
claim, as discussed above. Complainant's hostile work environment claim
alleges ongoing harassment that extends through the time period that
complainant initiated EEO Counselor contact. Specifically, this alleged
harassment includes the agency's notification on January 15, 1998, that
the supervisor would not be disciplined further for the altercation.
Therefore, the Commission determines that complainant initiated timely
EEO Counselor contact on February 18, 1998, with respect to all the
matters raised in the subject complaints.
Accordingly, the Commission REVERSES the agency's dismissal and REMANDS
these matters as identified herein to the agency for further processing
consistent with this decision and the ORDER set forth below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Philadelphia
District Office a request for a hearing 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
September 18, 2002
__________________
Date