01a01598_r
05-25-2000
Timothy L. Copeland, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Timothy L. Copeland, )
Complainant, )
)
v. ) Appeal No. 01A01598
) Agency No. AL900000207
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
We find that the agency's November 10, 1999 decision dismissing the
complaint on the grounds that it raised a proposal to take a personnel
action or other preliminary step to taking a personnel action, was
not proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(5)).<1>
The EEO Counselor's Report shows that on April 6, 1998, Complainant
sought EEO counseling claiming that he had been discriminated against
on the bases of race and color when on March 4, 1998, with regard to an
employment reference, an agency Major told him that a private contractor
would be informed of the Major's opinion about Complainant. Specifically,
the Major purportedly stated that the private contractor would be
told that Complainant: (a) was intimidating to his co-workers; (b)
was a big, black man; (c) his ability to speak fluently intimidated
and offended others because he seemed to �talk down to others�.
Complainant further claimed that these comments also resulted in a
hostile work environment.<2>
During the EEO inquiry of Complainant's informal complaint, the alleged
discriminatory officials stated that while they did not interfere with
the private contractor's hiring practices, they were aware that �another
applicant was believed to be better qualified.�
Subsequently, Complainant filed a formal complaint of discrimination.
Complainant raised the same issues he had brought to the attention of
the EEO Counselor. However, the complaint does not specifically address
the employment reference provided to the private contractor. The agency
dismissed the complaint on the grounds that it raised a proposal to a
personnel action, or other step to taking a personnel action.
On appeal, Complainant contends that throughout the course of the
EEO counseling, he expressed the belief that agency management had
provided negative references regarding employment opportunities with
a private contractor. Complainant also contends that �his restrictive
description of the discriminatory allegations was based upon the direction
and instruction provided to him by the EEO Counselor. Essentially, he was
told that he was not permitted to allege that the agency's discriminatory
actions resulted in his not being selected for a position with the
private contractor - although he did assert those allegations to the
EEO Counselor and the EEO Counselor did, in fact, investigate that issue�.
The Commission determines that a fair reading of pre-complaint documents
and the formal complaint reflects that Complainant claims that on March
4, 1998, agency officials discriminated against him by making racially
offensive comments and by allowing these comments to be part of the
agency's employment reference to a private contractor, which ultimately
rejected him. We find that this claim concerns the terms, conditions,
or privileges of Complainant's employment. We also find that it does
not raise a proposal to take a personnel action but rather, is in the
nature of a completed agency action. Therefore, Complainant has stated
a claim under our regulations.
Accordingly, the final agency decision was improper and is hereby
REVERSED. The complaint is REMANDED for further processing in accordance
with this decision and applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice 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 (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 (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 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:
May 25, 2000
DATE
Carlton
M.
Hadden,
Acting
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT 1
On 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.
2 The record reflects that at the time of the March 4, 1998 incident,
the agency decided to contract out its maintenance services; that
Complainant was informed that his agency position as carpenter would be
abolished; and that he was encouraged to apply to a private contractor
who was taking over the maintenance work at the agency facility where
Complainant was employed.