01A20312_r
01-13-2003
Robert R. Curtis, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Robert R. Curtis v. Department of Commerce
01A20312
January 14, 2003
.
Robert R. Curtis,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A20312
Agency No. 01-54-00187
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 18, 2001, 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, complainant alleged that he was subjected to discrimination
on the basis of religion (Christian) when:
Complainant was subjected to a hostile work environment when (a)
his supervisor notified the Chief, National Oceanic and Atmospheric
Administration (NOAA) Security Office, that complainant made a
comment about bringing a weapon into the building and (b) the Chief,
NOAA Security Office issued a Headquarters NOAA Building Screening
Notification requiring guards to seek approval prior to allowing him
access into the building, process him through the magnetometer, and
x-ray all of his packages or materials; and
Complainant was denied employment advancement over the past 10 years.
The agency dismissed claim issue (1) pursuant to the regulation set
forth at 29 C.F.R. � 1614.107(a)(4), for raising the same matters in an
appeal to the Merit Systems Protection Board (MSPB). The agency noted
that subsequent to the incidents described in issue (1), complainant
destroyed his identification badge, refused to return to work after
being directed to do so, and was ultimately terminated. The agency
noted that complainant appealed his removal to the MSPB and claimed
that the two incidents of hostile work environment cited by complainant
were inextricably intertwined with the issue of complainant's removal.
The agency argued that since complainant elected to pursue his termination
through the MSPB, his EEO complaint was properly dismissed. With regard
to issue (2), the agency dismissed this issue pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency noted that
complainant cites two instances were he was non-selected by his supervisor
�approximately 10 years ago� and hiring selections made in January,
February, May, and November 1998. The agency argues that complainant
did not seek counseling until January 29, 2001, and finds the hiring and
promotional practices of complainant's supervisor are discrete acts,
all of which fall outside of the limitations period. Alternatively,
the agency states that even if issue (2) were timely, it should still
be dismissed as moot.
On appeal, complainant submits voluminous documentation mainly regarding
his MSPB appeal and his contentions of alleged fraud committed by agency
officials. In a statement dated December 17, 2001, complainant also
discusses his non-selections in May 1998, November 1998, and early 2000,
which he states were the result of religious discrimination.
In response to complainant's appeal, the agency states that subsequent
to his termination from the agency, complainant contacted the EEO
Office on several occasions and made reference to his termination but
was unclear as to what he wanted to do. The agency states that the
Chief of the Compliance Division of the Office of Civil Rights contacted
complainant's attorney and requested that the agency be advised in writing
whether complainant was seeking to amend his complaint to include the
termination issue. According to the agency, the Chief of Compliance
advised that if the termination were included, the case would become a
mixed case and informed complainant of his right to redress via the MSPB.
The agency states that on July 11, 2001, complainant informed the Chief
of Compliance via telephone that he was pursuing his termination with
the MSPB and that his designated attorney was no longer representing him.
The agency notes that an MSPB Administrative Judge (AJ) issued a decision
on October 4, 2001, sustaining the agency's termination action.
The agency argues that complainant's appeal constitutes a collateral
attack on the MSPB decision. The agency states that complainant
raised the issues of alleged harassment, refusal to come to work,
procurement fraud with the MSPB and notes that although he did not raise
discrimination in the MSPB appeal, he could have done so. The agency
maintains that the two incidents of alleged harassment were effectively
considered with the issue of his removal since they were the founding
events leading to his termination. With regard to issue (2), the agency
reiterates its arguments that this issue is untimely, is a discrete
act which shares no common factual nexus with the incidents of alleged
harassment, and alternatively is moot.
The record shows that complainant filed an appeal to the MSPB on July 2,
2001, regarding his removal from the agency for (1) being absent without
leave since December 15, 2000, and (2) failing to follow leave procedures.
The MSPB AJ issued a decision on October 4, 2001, sustaining charges
(1) and (2). Further, the MSPB AJ found that the security restriction
imposed on complainant was not an onerous screening procedure and did
not excuse complainant's failure to return to work as directed.
Upon review, we find that issue (1) in the present complaint is
inextricably intertwined with the claims complainant elected to pursue
through the MSPB. We note that although complainant did not raise
discrimination in his MSPB complaint, he could have done so. Thus,
we find that the agency properly dismissed issue (1) pursuant to 29
C.F.R. � 1614.107(a)(4)
With regard to issue (2), we find that the agency properly dismissed
this issue pursuant to 29 C.F.R. � 1614.107(a)(2). We note that the
alleged non-selections identified by complainant in his formal complaint
occurred �approximately 10 years ago� and in January, February, May,
and November 1998. On appeal, complainant mentions two additional
non-selections occurring in early 2000. The record reveals that
complainant did not contact an EEO Counselor until January 29, 2001,
which was beyond the applicable limitations period.
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED.
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 (S0900)
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. 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
January 13, 2003
__________________
Date