0120130248
03-12-2013
Roosevelt W. Watts, Complainant, v. Mike Donley, Secretary, Department of the Air Force (National Guard Bureau), Agency.
Roosevelt W. Watts,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.
Appeal No. 0120130248
Agency No. 413411011
DECISION
On October 3, 2012, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 25, 2011, 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 the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Industrial Equipment Mechanic with the Agency's NGBA70C/CETSC/ANG in Minot, North Dakota.
On July 28, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (African-American), national origin (Choctaw Native American/Black), color (Black), and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when:
1. He was not given the high profile assignment from May 24 to June 4 [year not stated] of removing asbestos from a train at the Minot North Dakota Zoo;
2. He was denied overtime pay from June 6 to 17, 2005;
3. On June 17, 2006, he was denied 53 hours of overtime pay he earned;1
4. In April 2008, he was denied a high profile temporary duty assignment (TDY) to Westfield, Massachusetts, where 104 CES installed and refurbished an Air Craft Arresting System and he lost the opportunity to earn well over 100 hours of overtime; and
5. On April 20, 2011, via email his supervisor disapprovingly questioned an Agency information technology (IT) official on why he informed Complainant about the sensitive issue of a subordinate's laptop containing nude pictures (at the time Complainant was nearing the end of an approximately three month acting supervisor detail).
We defined the complaint, as set forth above, after reviewing the complaint, Complainant's June 23, 2011, response to the Agency's request that he clarify his informal complaint, and his August 6, 2011, response to the Agency's request that he clarify his formal complaint. While Complainant's complaint contained broader allegations, these are the only claims with specific incidents we were able to identify. The Agency's definition of the complaint captured fewer bases and only issue 5, and used somewhat different language.
The Agency dismissed issues 1 through 4 by omission. It dismissed issue 5 for failure to timely initiate EEO counseling and failure to state a claim. It reasoned that Complainant initiated contact with an EEO counselor on June 15, 2011, beyond the 45 calendar day time limit and that Complainant was not harmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.402(b) provides that if a complainant is represented by an attorney of record the 30 day time limit to file an appeal is calculated from receipt of the required document (here the FAD) by the attorney. The Agency submits a postal domestic return receipt and postal track and confirm statement showing that the attorney who Complainant indicated in his complaint represented him received the FAD on September 1, 2011. Accordingly, the Agency argues that Complainant's appeal of October 3, 2012, is very untimely. Complainant counters that he only named the attorney as his representative in his complaint at the insistence of the Agency Equal Opportunity (EO) Director, and he did not plan to have such representation until the hearing stage. The EO Director denies that he had a discussion with Complainant regarding naming his attorney as his representative.
While we find the weight of the evidence is that Complainant intended to indicate in his complaint that he was represented by the above attorney, and hence 29 C.F.R. � 1614.402(b) applies, we still find that Complainant's appeal is timely.
The Agency did not incorporate appeal rights into the FAD. Instead, it attached a copy of "Notice of Rights and Responsibilities" which it previously provided Complainant. The Notice is intended to be given at the counseling stage, describes in detail the EEO process, including the right to request a hearing after the investigation, and does not include appeal rights. Providing the Notice which did not include appeal rights at the appeal stage was confusing. With the FAD the Agency also attached an EEOC Notice of Appeal/Petition form 573. The Notice did not explain why the appeal form was included or its purpose. Also, while form 573 has cryptic appeal rights, the EEOC address in the instructions of where to mail the appeal was cut off in the record copy.
In a January 10, 2012, email response to a status inquiry by Complainant, the EO Director advised him that his complaint was dismissed on August 25, 2011, and his representative received the decision. Complainant then emailed the EO Director that he was requesting a hearing. In his January 24, 2012, reply, the EO Director advised Complainant that the Notice of Rights and Responsibilities provided that he had the right to request a hearing with the EEOC if he disagreed with the Agency's decision, and advised that the hearing request be sent directly to the EEOC. This advice was incorrect. Complainant had a right to file an appeal with the EEOC from the dismissal FAD, not request a hearing. 29 C.F.R. � 1614.401(a).
Complainant made a hearing request with the EEOC. On July 17, 2012, an EEOC Administrative Judge advised Complainant that he had no right to a hearing at that stage of the administrative process, and should have filed an appeal with EEOC. The record does not show if the AJ provided an appeal address. At some point Complainant contacted his U.S. Senator, whose office contacted the EEOC. In a September 26, 2012, letter to the Senator, the EEOC advised of Complainant's appeal rights. Complainant then filed his appeal on October 3, 2012. In light of the Agency's failure provide proper appeal rights and misdirecting Complainant that he had a right to request a hearing, we deem the Complainant's appeal to be timely filed.
On appeal, Complainant argues that he initiated contact with an EO office on April 28, 2011, not June 15, 2011. The record shows that via email Complainant contacted the EO Director on April 28, 2011, to request "complaint" documents. In a contemporaneous memorandum, the EO Director wrote that after getting the email on April 28, 2011, he talked to Complainant on the telephone and asked if he was preparing to file a complaint. He wrote Complainant replied no, saying he wanted the forms "just in case." The EO Director wrote that when he suggested Complainant begin the complaint process with him, Complainant expressed that he knew the complaint process, and asked for the forms, which he sent. The EO Director later wrote that when he offered Complainant assistance on April 28, 2011, he refused to proceed, saying he wanted the forms just in case.
Complainant did not contact the EO office again until June 15, 2011, when he submitted what the Agency characterized as an informal complaint. Complainant writes that that on April 28, 2011, the EO Director advised him that he had time to submit his forms at a later date. Complainant indicates that he was on TDY in Lynchburg, Virginia from May 9, 2011, for about 17 days, and upon his return chaos struck in that he had to engage in preparation in May and June 2011 for a coming flood, including moving his family to higher ground. He writes that he needed time to prepare his documents. Complainant writes the flood devastated Minot, North Dakota and destroyed his home in the summer of 2011.
We find that while Complainant initiated EEO contact on April 28, 2011, he effectively withdrew his contact by not proceeding with the EEO process and failing to contact the EO office again until June 15, 2011. In light of the EO Director's statements, we do not credit Complainant's contention that he was advised he had time to wait. Further, to proceed Complainant was not required to submit a complicated packet of documents. Accordingly, we find Complainant initiated EEO contact on June 15, 2011.
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, 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) & .107(a)(2). Complainant became aware of issue 5 on April 18, 2011. Accordingly, his EEO contact on June 15, 2011 was untimely.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. In the case at hand
We agree with the Agency's finding that Complainant was not harmed by issue 5. When the incident occurred, Complainant was a temporary supervisor and was not harmed by decision that a matter involving potential discipline should be handled by permanent management. Further, this event would not likely deter protected EEO activity. Accordingly, the Agency's dismissal of issue 5 is dismissed.
We now turn to issues 1, 2, 3 and 4. The time limit to seek EEO counseling shall be extended when an individual shows he did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). 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 (Feb. 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.
Complainant generally alleged that his supervisor concealed race and reprisal discrimination. However, a review of the record shows that Complainant suspected discrimination long before initiating contact with an EEO counselor. For example, he contended that while he went on almost no TDYs from 2003 to 2009, his white co-workers went on them earning extra money, presumably through overtime. Further, he was aware when it occurred of not being paid earned overtime. He does not specifically allege that these matters were concealed from him.
Accordingly, we dismiss issues 2, 3 and 4 for failure to timely initiate EEO counseling. These incidents occurred years before Complainant initiated EEO counseling on June 15, 2011, and are discrete acts.
We vacate the Agency's dismissal, by omission of issue 1. Complainant indicated this incident occurred from May 24 to June 4, but did not identify the year. Accordingly, we are unable to make a determination on timeliness.
The FAD is MODIFIED. The Agency shall comply with the order below.
ORDER
The Agency is ordered to contact Complainant and determine what year issue 1 occurred. Thereafter, the Agency shall accept issue 1 for investigation and process it under 29 C.F.R. Part 1614, or issue a new FAD dismissing issue 1. The Agency shall issue a letter accepting issue 1 or a FAD dismissing it within 60 calendar days after this decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include a copy of the letter accepting issue 1 for investigation or a FAD dismissing issue 1.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 12, 2013
__________________
Date
1 It is unclear whether issues 2 and 3 regard the same matter.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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