01991675
08-09-2000
Thomas E. Melton, Jr., Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Thomas E. Melton, Jr. v. Department of the Air Force
01991675
August 9, 2000
Thomas E. Melton, Jr., )
Complainant, )
)
v. ) Appeal No. 01991675
) Agency No. AL900990253
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency, in its November
27, 1998 final decision (FAD), improperly dismissed complainant's October
8, 1998 formal EEO complaint,<1> alleging nonselection for promotion to
the position of Aircraft Engine Mechanic Supervisor, based on age,<2>
for untimely EEO Counselor contact. See 64 Fed. Reg. 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)). The
agency has offered no arguments in response to complainant's timely
appeal of December 22, 1998,<3> by his representative, to persuade us
to the contrary. Although the agency file contains a reference to the
agency's opposing arguments, no such document appears in the file.
EEOC Regulations require a complainant to initiate EEO counseling within
45 days of the alleged discriminatory event, or alleged discriminatory
personnel action. See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to
and to be codified as 29 C.F.R. � 1614.105(a)(1)). Time limitations shall
be extended when a complainant makes an adequate showing of justification
for an extension. See 64 Fed. Reg. 37,656(1999)(hereinafter referred
to and to be codified as 29 C.F.R. � 1614.105(a)(2)). In addition, time
limitations are subject to waiver, estoppel, and equitable tolling. See
64 Fed. Reg. 37,661(1999)(hereinafter referred to and to be codified as
29 C.F.R. � 1614.604(c)).
The Commission has applied a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO Counselor. See Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period for
contacting an EEO Counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent.
However, in the present matter, the Commission finds that the agency
has not met its �burden of obtaining sufficient information to support a
reasoned determination as to timeliness." See Guy, Jr. v. Department
of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992)). In this regard, we find the agency has failed to provide a
sufficiently clear and adequate record in support of the FAD. See Henry
v. U.S. Postal Service, EEOC Request No. 05940897 (May 10, 1995), citing
Gens v. Department of Defense, EEOC Request No. 05910837 (January 31,
1992); Hines v. U.S. Postal Service, EEOC Appeal No. 01923566 (May 13,
1993).
The Commission finds that the FAD dismissed the complaint on the grounds
that complainant's initial EEO contact, of June 18, 1998, was beyond the
applicable time period of 45 days. See 64 Fed. Reg. 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.105(a)(1)).
However, we find the FAD deficient as to the nature of the alleged act
of discrimination and the date of the alleged act of discrimination.
In addition, the Commission finds the agency's processing of complainant's
complaint to be improper. We find that the author of the FAD was the
agency activity's Chief EEO Counselor (�CEEO�), who also counseled
complainant, at least during part of the process.<4> The Commission
finds that CEEO's actions are inconsistent with the requirement that EEO
Counselors be neutral and impartial, and jeopardize the integrity and
credibility of the EEO program. See the Commission's Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
as revised, November 9, 1999, Ch. 2, � III. We further find improper
CEEO's February 5, 1999 memorandum stating, in relevant part: �The
agency opposes the Complainant's appeal. Failing to comply with the
applicable time limits to initiate contact is grounds of the opposition
in this case.� It does not appear, however, that CEEO ever inquired into
the reasons, if any, for complainant's alleged untimely EEO contact, as
CEEO was required to do. See McDonald v. Department of Transportation,
EEOC Request No. 05960642 (August 11, 1998).
The Commission also finds that a portion of CEEO's memorandum not
only contradicts the FAD, but also is inadequately supported by record
evidence in its (the memorandum's) ultimate conclusion. Specifically,
we refer to the following comments by CEEO:
The complainants' [sic] representative raised the �discriminatory'
issue to the unit commander via fax on 8 May 1998. This is the date
the complainant initially contacted this agency. The date the complainant
approached the EEO complaint system is not the factor for this dismissal.
The 8th of May 1998 is an initial contact date and the 15th of March 1998
was the date of the promotion action. The notification to employees was
on the 20th of March 1998 is [sic] the date complainant became aware of
the personnel action dates. The time period from 8 May 1998 to either
the 15th of March or the 20th of March exceeds 45 days.
The complainants' [sic] date of factual awareness is 8 May 1998 of
the initial contact to the unit commander. These aforementioned facts
confirm this Agency's dismissal of this complaint.
Record evidence shows that the selectee was chosen on February 11, 1998,
with an effective date of March 15, 1998. We note that, according to
the EEO Counselor's report, the selecting official, on February 20,
1998, �briefed subordinates of selection during staff meeting.�
By letter dated May 8, 1998, complainant's representative contacted the
activity's Wing Commander and advised him that the representative had
been hired �to represent and independently investigate� the agency's
handling of the promotion at issue. The representative further wrote,
in relevant part, that �it is our understanding that [the selecting
official] did not employ basic merit promotion criteria for his most
recent competitive service promotion, pointing to a possible prima facie
case of discrimination in his promotion selection of [the selectee].�<5>
We find that the Chief of Civilian Personnel (�CPO�) responded to
complainant's representative in a June 4, 1998 letter, advising him,
in pertinent part as follows:
Complainant is apparently not a member of any protected group which would
support a prima facie case of discrimination. However, if [complainant]
is attempting to file some type of discrimination complaint he should
contact a local EEO counselor.
It appears that complainant received CPO's letter on June 12, 1998.
The Commission finds, from its review of complainant's arguments on
appeal, that he is relying on June 12, 1998, as the triggering date for
the 45 days within which he had to initiate EEO counseling. Although
complainant states, on appeal, that he in fact initiated EEO counseling
on June 19, 1998, complainant contends that it was only on June 12, 1998,
when he received CPO's letter, that �complainant only became �reasonably
aware' of �factual issues and basis' involving his age and recommended
action by [CPO] after a review of the facts and written concerns.�
Having reviewed the entire record in this case, the arguments on
appeal, including those arguments not expressly addressed herein, and
for the foregoing reasons, the Commission hereby VACATES the FAD and
REMANDS complainant's complaint for further processing consistent with
the Commission's decision and applicable regulations. The parties
are advised that this decision is not a decision on the merits of
complainant's complaint. The agency shall comply with the Commission's
Order set forth below.
ORDER
The agency is hereby ORDERED to take the following actions:
(1) The agency shall conduct a supplemental investigation into the date
complainant knew or reasonably should have known he had been discriminated
against, in connection with the nonselection at issue, for the purpose
of determining the date by which complainant should have initiated EEO
counseling to be timely.
(2) The supplemental investigation shall include all relevant documents,
not previously provided by the agency and referenced in this matter,
including but not limited to statements under oath or affirmation
from persons with first-hand knowledge of relevant events, including
statements from complainant himself, as to when complainant knew or
reasonably should have known he had been discriminated against.
(3) At the conclusion of the supplemental investigation, the agency
shall issue a report of supplemental investigation and either a letter
to complainant and his representative accepting the complaint at issue,
or a new final decision, with appeal rights to the Commission, again
dismissing the complaint.
(4) A new final decision of dismissal shall clearly identify all
applicable bases of discrimination and claims raised, and shall identify
with specificity all legal grounds for dismissal and all facts and
documents relied on in dismissing complainant's complaint.
All Ordered actions, including the completion of the supplemental
investigation, issuance of the investigative report and letter of
acceptance or new final decision, shall be completed within sixty (60)
calendar days of the date the Commission's decision becomes final
in this matter. Copies of all relevant documents, including those
items referenced in this paragraph, shall be sent to complainant,
his representative, and to the Commission's Compliance Officer, as
referenced below. The parties are advised that the Commission's Office
of Federal Operations will issue sanctions against the agency if and
when it determines that the agency is not making reasonable efforts to
comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 (OF) 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
August 9, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2See the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. � 621 et seq. The Commission notes that, in his complaint,
complainant requested inter alia compensatory damages. However,
compensatory damages are not available in claims brought under the
ADEA. See Taylor v. Department of the Army, EEOC Request No. 05930633
(January 14, 1994).
3See 64 Fed. Reg. 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402).
4In his complaint, complainant identified CEEO as his EEO Counselor,
although we note an August 13, 1998 letter wherein CEEO directed
complainant to contact another, named, EEO Counselor. It also appears
that it was CEEO who provided complainant with the required Notice of
Final Interview. See 64 Fed. Reg. 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.105).
5Record evidence reveals that complainant was 51, and the selectee was
41, at the time this matter arose.