01a22217_r
10-31-2002
Sylvester Traylor, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Sylvester Traylor v. Department of the Navy
01A22217
October 31, 2002
.
Sylvester Traylor,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22217
Agency No. 02-61115-001
DECISION
The record indicates that complainant filed a formal complaint dated
November 21, 2001, alleging discrimination based on reprisal for prior
EEO activity when:
On or about January 24, 2001, he was not selected for the position
of Cashier;
On February 15, 2001, he was terminated from the NEX Security Department;
In February 2001, a Security Manager issued a defamatory and untrue memo
to supervisors and managers about him;
In March 2001, the Security Manager contacted his supervisor to discredit
and disgrace his name;
In March 2001, his supervisor told a former coworker of his that he was
not allowed to talk to complainant;
In March 2001, the Security Manager contacted the Naval Submarine
Base Security Department to have complainant's car decals removed and
complainant's identification card taken away so complainant could not
re-enter the Naval Submarine Base, even though he knew complainant was
employed at the Moral, Welfare, and Recreation Department of the Naval
Submarine Base; and
On March 14, 2001, the local town police were called to the Naval
Housing Facility after a person living there thought complainant was
following her.
In its decision, dated February 8, 2002, the agency dismissed claims (a)
through (f) due to untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). Specifically, the agency stated that complainant did
not contact an EEO Counselor with regard to his complaint until September
9, 2001, which was beyond the 45-day time limit set by the regulations.
The EEO Counselor's Report, however, reflects that complainant contacted
an EEO Counselor with regard to the complaint on September 5, 2001.
On appeal, complainant contends that he previously raised the alleged
matters, via his letter dated March 16, 2001, which he presented to
an identified EEO Counselor. Complainant submits a copy of the letter
which contained the identified EEO Counselor's signature, dated March 16,
2001, confirming his receipt of the letter.
With regard to claim (a), the Commission finds that even if complainant's
initial EEO contact was, as complainant argues, on March 16, 2001, the
EEO contact with regard to the alleged incident of January 24, 2001,
was beyond the 45-day time limit set by the regulations. Therefore,
we find that claim (a) was properly dismissed for untimely EEO Counselor
contact pursuant to � 1614.107(a)(2).
With regard to claims (b) - (f), the Commission finds that there
is no evidence in the record to show whether complainant submitted
his March 16, 2001 letter in order to initiate the EEO complaint
processing with regard to the matters raised therein. The agency has
not submitted a statement from the person who signed the March 16, 2001
letter, addressing the circumstances in which he received the letter.
Based on the foregoing, the record is insufficient for the Commission to
determine whether complainant's EEO contact with regard to claims (b)
- (f) was timely. Therefore, the agency is Ordered, as stated below,
to conduct a supplemental investigation concerning the matter.
With regard to claim (g), the agency dismissed the claim for failure
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The record
indicates that the incident occurred while complainant was visiting his
friend's house to pick up a barbecue grill. Upon review, the Commission
finds that complainant was not aggrieved with regard to a term, condition,
or privilege of his employment as a result of the incident related to
his personal business, and not his employment. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Thus,
the Commission finds that the agency properly dismissed claim (g) for
failure to state a claim.
Accordingly, the agency's decision dismissing claims (a) and (g) is
hereby AFFIRMED. The agency's decision dismissing claims (b) - (f)
is VACATED and claims (b) - (f) are REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.<1>
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to take the following actions:
The agency shall provide in the record a statement from the identified EEO
Counselor, who purportedly received complainant's March 16, 2001 letter,
indicating whether complainant gave the letter to the same EEO Counselor
in order to initiate the EEO complaint process concerning the matters
raised therein. The agency shall then redetermine whether claims (b) -
(f) were timely raised with an EEO Counselor.
Based on the foregoing information, the agency, within thirty (30) days
of the date this decision becomes final, shall issue a letter accepting
claims (b) - (f) for processing or issue a new decision dismissing claims
(b) - (f).
A copy of the new agency decision or notice of acceptance of the remanded
claims must be sent to the Compliance Officer as referenced below.
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 (T0900)
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 (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
October 31, 2002
__________________
Date
1It appears that complainant is improperly
trying to appeal his previous complaint, Agency No. 01-61115-001, which
is pending for hearing at this time, Hearing No. 160-A2-8083X.