01A30475_r
05-13-2003
Sammie L. Truelove, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Sammie L. Truelove v. Department of the Army
01A30475
May 13, 2003
.
Sammie L. Truelove,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A30475
Agency No. AREUHQ02JUNE00001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 26, 2002, 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his formal EEO complaint, filed on March 25, 2002, complainant
alleged that he was subjected to harassment on the bases of race, color,
disability, and age when:
(a) A Director of Logistics and a Chief, Supply & Services continuously
moved complainant's subordinates out from under his control.
Communicating directly with them without going through complainant, while
complainant was the Chief of Transportation beginning in 1999, until he
left that position temporarily to be a member of the restationing team
on March 5, 2001;
(b) The Director of Logistics did not select complainant to be the
Acting Director of Logistics in his absence even though complainant's
job description stated that he will serve as the acting DOL in the
absence of the Chief of DOL. Two other employees were appointed the
acting position. An agency employee was appointed Acting DOL, August
1999 through June 2000; and the Chief, Supply & Services was appointed
Acting DOL, July 2000 through August 2000;
(c) in November 1999, complainant's subordinate was insubordinate to
complainant. When complainant tried to discipline her, complainant's
supervisor overruled him;
(d) in June 2000, the Director of Logistics recommended that complainant
receive a one-year extension, rather than a two-year extension that
complainant had requested;
(e) complainant did not receive his performance appraisal fo the rating
period of October 1, 1999 through October 31, 2000, thus causing him not
to receive a QSI Award for that rating period. His performance appraisal
was not returned to him for the rating period until September 23, 2001;
(f) in January 2001, the Director of Logistics told complainant that
the Chief, Supply & Services was ostracizing him within the 104th ASG
organization;
(g) when complainant returned from leave, he learned that his personal
belongings had been removed from his office without his knowledge and the
locks changed to his office at the direction of the Director of Logistics
and Chief, Supply & Services, after he had received approval by an
agency Colonel to be assigned to the restationing team on March 5, 2001;
(h) The Director of Logistics accused complainant of being AWOL, in
failing to report to his position on the restationing team on March 5
and 6, 2001;
(i) complainant was treated disparately when he was not reappointed as
the Chief of Plans and Operations at the end of his temporary assignment.
His temporary assignment to the restationing team began on March 5,
2001 and was to end in 120 days; however, it did not end until January
2002; and
(j) complainant was denied a two-year extension by an agency Colonel in
August 2001, even though he had not been in his position for 5 years;
the person replacing him as the Chief of Plans and Operations, [agency
employee], had been in Europe for at least 10 years.
The agency dismissed claims (a) through (h) and (j) on the grounds that
complainant initiated contact with an EEO Counselor in an untimely manner.
Specifically, the agency determined that the last alleged discriminatory
event occurred in August 2001, but that complainant did not initiate EEO
Counselor contact until October 22, 2001, beyond the forty-five (45)
day limitation period.<1> The agency dismissed claim (i) for failure
to state a claim. The agency found that complainant had not established
that he was an aggrieved employee after being returned to his position of
record after his detail ended. Further, the agency determined that claims
(a) through (j) are not part of a continuing violation. Furthermore,
the agency dismissed age as a basis. The agency noted that complainant
was only 37 years of age at the time of the alleged discriminatory
actions which are the subject of this complaint. Therefore, the agency
concluded that complainant's allegation of age discrimination relative
to this case does not meet the criteria contained in 29 C.F.R. � 1614.103.
On appeal, complainant through counsel, asserts that his EEO contact
occurred in April 2001 when he sought the assistance of a Colonel by
taking advantage of his �open door� policy. Specifically, complainant
asserts that he made several trips to the Hanau EEO office concerning
issues he had with his supervisor but that the Hanau EEO office was not
operating due to the departure of an EEO Officer. Complainant states
that following several unsuccessful trips to the Hanau EEO office, he
went to the Colonel's office in April 2001. Complainant further argues
that his allegations of discrimination should not have been investigated
by an investigator assigned by the Colonel, but instead should have been
referred to the EEO office. Complainant argues that claim (e) is timely
because he did not receive his performance appraisal until September 2001.
Further, complainant contends that his complaint should be evaluated in
terms of a continuing violation.
In response, the agency argues that claims (a) through (h) were untimely
raised with an EEO Counselor because complainant failed to contact the
EEO office concerning these claims until October 2001, well beyond the
forty-five (45) day limitation period. The agency further argues that
complainant chose to first pursue these matters in another forum, and
that he only contacted the EEO office in October 2001, after his concerns
were determined to be unfounded in the chosen forum. With respect to
claim (e), the agency argues that the date of incident occurred as early
as April 2001, rather than September 21, 2001, as stated by complainant.
As to claim (i), the agency determined that a fair reading of this claim
reflects the following circumstances. Complainant was to be returned to
his position of record after his detail ended in January 2002; however,
complainant requested a new detail. The agency submits documents
reflecting the expiration of the detail in January 2002, complainant's
request for an extension of the detail, and the agency's granting of
that request. The agency further determined that the decision to grant
complainant a new detail at his own request, instead of returning to
his position of record, cannot be construed to have caused complainant
a personal harm or loss with respect to a term, condition, or privilege
of his employment.
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
To satisfy the forty-five day contact requirement, the Commission has
consistently required complainants to contact an EEO Counselor or official
logically connected with the EEO process and "exhibit an intent to begin
the EEO process." EEOC Management Directive (MD-110), 2-1 (November 9,
1999)(citing Kinan v. Department of Defense, EEOC Request No. 05990249
(May 6, 1999); see Cox v. Department of Housing and Urban Development,
EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal
Service, EEOC Request No. 05950933 (July 9, 1996).
Regarding claims (a) through (d), (f) through (h) and (j), the record
in the instant case reveals that complainant contacted an EEO Officer
in May 2001, concerning issues he had with his supervisor. The record
contains an EEO Officer's statement dated August 13, 2002, wherein she
stated that in May 2001, complainant informed her that he did not want
to file a complaint and that he preferred to use the Colonel's chain of
command to resolve his issues. According to the EEO Officer, she then
informed complainant of the forty-five-day time limit in case he decided
to file a complaint concerning his claims. The record also contains the
Colonel's statement. Therein, the Colonel indicated that in late April or
early May 2001, complainant shared his concerns involving his supervisor.
The Colonel stated that he specifically mentioned the possibility of
using the EEO process, as complainant's documents made reference to his
civil rights. The Colonel further stated that complainant indicated that
he did not �want to use them� but that he instead wanted the Colonel
to investigate these matters. At complainant's request, the Colonel
appointed an �AR 15-6 investigator� to look into complainant's concerns.
The record contains a copy of the Colonel's letter dated May 14, 2000, to
an investigator listing claims (a) through (d), (f) through (h) and (j).
Complainant did not contact the EEO office again until October 25,
2001. Therefore, the Commission finds that he did not contact an
EEO Counselor with the intent to pursue the EEO complaint process
until October 25, 2001. Complainant's informal attempts to resolve
his claims, through an agency Colonel, do not toll the time limit.
Moreover, as none of the claims occurred within forty-five days of
complainant's initial EEO Counselor contact, a continuing violation
analysis is not necessary. Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Therefore, the Commission finds that
the agency properly dismissed claims (a) through (d), (f) through (h)
and (j) for untimely Counselor contact.
Moreover, regarding when the matter in claim (e) purportedly occurred,
complainant contends he suffered discrimination when his performance
appraisal for the rating period of October 1, 1999 through October 31,
2000, was not returned to him until September 23, 2001. The record shows,
however, that complainant raised the issue of the lack of his performance
appraisal when he met with the agency Colonel in April 2001. We note that
the agency, in response to complainant's appeal, argued that back in April
2001, complainant knew his performance appraisal was ready but refused
to pick it up. In support of its arguments, the agency submits a copy of
the investigative report wherein the investigator found that complainant's
performance appraisal for rating period November 1, 1999 through October
31, 2000 existed. We do not find that complainant has provided sufficient
justification for extending or tolling the forty-five-day time limit.
Therefore, we find that the agency's dismissal of claim (e) for untimely
EEO Counselor contact was proper.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Regarding claim (i), the Commission finds the agency properly dismissed
claim (i) for failure to state a claim. The record indicates that when
his detail was to expire in January 2002, complainant requested another
detail, which request was granted. We find that the matter raised in
this claim does not address a personal loss or harm regarding a term,
condition, or privilege of his employment.
With regard to the basis of age, the Commission determines that the
agency properly dismissed this basis. A review of the file reveals
that in the EEO Counselor's Report, complainant identified himself as
thirty-seven years old. However, as the ADEA clearly provides, only
those individuals who are at least forty years of age are protected from
age discrimination. As such, the agency's decision to dismiss age as a
basis was appropriate.
Accordingly, the agency decision to dismiss claims (a) through (h) and
(j) for untimely EEO Counselor contact; the agency's decision to dismiss
claim (i) for failure to state a claim; and the agency's decision to
dismiss age as a basis was proper, and is hereby 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
May 13, 2003
__________________
Date
1The record in the instant case contains
the EEO Counselor's Report, wherein the EEO Counselor stated that
complainant's initial EEO contact was on October 25, 2001, not October
22, 2001, as stated in the agency's final decision. This disparity in
dates does not affect our disposition of this case.