Nasser Roman, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A04661_r (E.E.O.C. Sep. 18, 2002)

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