01981746
02-26-1999
Steve McNeil, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force Agency.
Steve McNeil v. Department of the Air Force
01981746
February 26, 1999
Steve McNeil, )
Appellant, )
) Appeal No. 01981746
v. ) Agency No. EHOA-97-003
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force )
Agency. )
________________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. The final agency decision was dated November
20, 1997. The appeal was postmarked December 19, 1997. Accordingly,
the appeal is timely (see, 29 C.F.R. �1614.402), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issues on appeal are whether the agency properly dismissed the
following allegations of appellant's complaint, as outlined in the
agency's final decision:
Allegations 1(a), 1(b), 1(c), and 1(d) for failure to timely contact an
EEO Counselor;
Allegations 1(e), 1(f), 1(g), 1(h), and 1(i) for failure to raise the
issues during the pre-complaint counseling stage; and
Allegation 1(j), for failure to state a claim.
BACKGROUND
Appellant contacted an EEO Counselor on June 11, 1997, raising numerous
allegations of discrimination based on the agency perceiving him as
being disabled and in reprisal for his participating in a protected
activity. Specifically, appellant asserted that between February
17, 1997 and May 7, 1997, various discriminatory actions were taken
in an effort to keep him from returning to work from an off the job
injury. Appellant further asserted that upon returning to work various
discriminatory actions were taken in an effort to keep him from returning
to the position he held prior to his injury and that he was subjected
to retaliatory conduct.
After EEO counseling was concluded, appellant filed a formal EEO complaint
on July 28, 1997, alleging disability based discrimination and reprisal in
numerous agency actions. The dismissed issues are summarized as follows
in the agency's final decision (FAD):
1(a). Between February 17, and April 23, 1997, appellant's supervisor
allegedly failed to make preparations for appellant's return to work;
1(b). On April 23, 1997, appellant's supervisor allegedly misrepresented
the duty requirements of appellant's job to a staff person in the Civil
Personnel Office;
1(c). On April 23, 1997, appellant's supervisor allegedly told appellant
that a contractor would be used to accomplish appellant's work;
1(d). On April 23, 1997, appellant's supervisor directed that appellant's
sick leave account be charged for the day;
1(e). On May 7, 1997, the Deputy Base Civil Engineer held a meeting with
several members of management concerning appellant's return to work;
1(f). On May 8, 1997, appellant allegedly received a written statement
of oral admonishment from appellant's supervisor;
1(g). As of May 12, 1997, an adverse memorandum concerning an oral
admonishment received by appellant from his supervisor was still in his
personnel folder;
1(h). On May 13, 1997, appellant's supervisor allegedly stated that
the name of appellant's office was going to be changed to the "DERA
Convalescent Section";
1(i). On June 2, 1997, appellant's supervisor placed a memorandum of
record in appellant's personnel folder;
1(j). The agency allegedly suggested the use of a mediator to resolve
the disputes between appellant and his supervisor.
Appellant also set forth six additional claims as outlined in the agency's
November 20, 1997, final agency decision (FAD). The agency accepted
four of appellant's claims for investigation, and referred two claims
to informal counseling because the agency deemed these to be new issues.
On appeal, appellant claims that the incidents at issue compose a
continuing violation in that they were continuous in nature and were
all part of a concentrated effort to deprive him of the benefits of his
employment. Appellant contends that he was unaware that a discriminatory
pattern was developing, and initially attributed the adverse actions
to misunderstandings. Appellant further contends that a contributing
factor to his not recognizing a discriminatory animus is that he does
not consider himself disabled. Appellant contends that not until his
efforts to resolve the misunderstandings were unsuccessful did he come
to believe that the agency wrongfully regarded him as being disabled.
With regard to the agency's dismissal of allegations 1(e), 1(f), 1(g),
1(h), and 1(i), appellant contends that the EEO Counselor's inclusion of
May 8, 1997, as a date of incident and the Counselor's written reference
to some of the May 8, 1997, occurrences clearly evidences the necessity
of including the issues.
With regard to the agency's dismissal of allegation 1(j), appellant
asserts that this incident was part of a scheme by agency officials to
lull appellant into sitting on his EEO rights and thus forfeit them for
timeliness.
The agency has not responded to appellant's appeal statement.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the EEO Counselor
within 45 days of the alleged discriminatory event, or the effective
date of an alleged discriminatory personnel action. The Commission has
determined that the normal time limit for contacting an EEO counselor
may be suspended if a continuing violation is demonstrated. Vissing
v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June
13, 1989). A continuing violation has been defined as a series of
related acts, one or more of which falls within the limitations period.
Valentino v. United States Postal Service, 674 F.2d 56 (D.C.Cir. 1982);
Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied,
434 U.S. 1069 (1978). An essential ingredient of a continuing violation is
a unifying theme uniting the alleged discriminatory acts of the employer
into a continuous pattern. Vissing, supra.
Relevant to the finding of a unifying theme are whether the same officials
were involved in the adverse actions and whether the incidents were of a
similar nature. Verkennes v. Department of Defense (DLA), EEOC Request
No. 05900700 (September 21, 1990). Also relevant to the inquiry is
whether appellant had prior knowledge or suspicion of discrimination and
the effect of this knowledge. Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990).
We find, in this regard, that appellant's allegations state a continuing
violation. First, we note that it is clear that appellant alleges two
agency officials working together form the motivating force for all of
the challenged actions, both timely and untimely raised. We also find
that each of these issues are manifestations of appellant's unifying
theory that he has been continually discriminated against by the agency
in this manner since he first attempted to return to work from an off
the job injury. While some allegations relate to appellant being denied
the opportunity to return to the position he held prior to his injury
and others relate to alleged disciplinary action taken after appellant
returned to work, they are all part of his abiding allegation that the
two agency officials orchestrated numerous discriminatory actions over
several months in order to keep him from returning to work, to keep
him from returning to the position he held prior to his injury and in
reprisal for his participating in a protected activity. Further, alleged
retaliatory acts purportedly commenced on May 8, 1997, which is clearly
within 45 days of appellant's EEO counselor contact.
There is also no indication in the record that appellant had prior
knowledge or suspicion of discrimination before his EEO Counselor
contact. Indeed, appellant asserts without contradiction, that he did not
consider himself disabled and as such was unaware that he was covered
by the EEO program. Based on the foregoing, we reverse the agency's
rejection of portions of appellant's complaint as untimely and order
the agency to investigate it as a timely continuing violation.
The agency dismissed allegations 1(e), 1(f), 1(g), 1(h), and 1(i),
for failing to raise the issues during the pre-complaint counseling
stage. The EEO Counselor's report clearly establishes appellant broached
the subject of retaliation with the EEO Counselor. The EEO Counselor's
report states as an issue: "Is management treating him [appellant]
unfairly due to complaint to [a Congressman's] office?" A review of
appellant's allegations 1(e), 1(f), 1(g), 1(h), and 1(i), as outlined in
the agency's FAD, indicates that the issues are a more definite statement
of appellant's retaliation claim. Further, the allegations are clearly
like and related to appellant's overall claim. Based on the foregoing,
we reverse the agency's rejection of the aforementioned portions of
appellant's complaint and order the agency to investigate it as a timely
continuing violation.
With regard to the agency's dismissal of allegation 1(j). EEOC
Regulation 29 C.F.R. �1614.107(a) provides that the agency shall dismiss
a complaint or a portion of a complaint that fails to state a claim
under �1614.103(a). Commission 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
(Apr. 21, 1994).
We find that the agency properly dismissed allegation 1(j). Appellant has
failed show how he was harmed merely because the agency invited him to
mediate his dispute. Given our finding that his allegations are timely
raised, appellant's contention fails to state a claim.
CONCLUSION
Based on a review of the record in this case, it is the decision of the
Commission to REVERSE the agency's dismissal of appellant's allegations
1(a) through 1(i), which are hereby REMANDED to the agency for further
processing in accordance with the Order below. The agency's dismissal
of allegation 1(j) remains AFFIRMED.
ORDER (E1092)
The agency is ORDERED to consolidate and process allegations 1(a) through
1(i) in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge
to the appellant that it has received the remanded allegation within
thirty (30) calendar days of the date the agency receives this decision.
The agency shall issue to appellant a copy of the investigative file
and also shall notify appellant of the appropriate rights within one
hundred fifty (150) calendar days of the date the agency receives this
decision, unless the matter is otherwise resolved prior to that time.
If the appellant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the correspondence that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Feb 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations