01A42560
06-16-2004
Tony E. Hopes, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Tony E. Hopes v. Department of the Air Force
01A42560
06-16-04
.
Tony E. Hopes,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A42560
Agency No. 9L2W03126, 9l2W03126L04
DECISION
INTRODUCTION
On September 16, 2003, complainant filed a formal complaint alleging
he was discriminated against based on his race (African-American) in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. On February 20, 2004, complainant
was issued a final agency decision informing him that his complaint
had been dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. On March 8, 2004, complainant filed the instant
appeal pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether complainant's complaint was properly
dismissed for untimely EEO Counselor contact pursuant to 29 C.F.R. �
1614.107(a)(2).
BACKGROUND
Complainant was a meat cutter employed by the Defense Commissary Agency at
Bolling Air Force Base (AFB) for 15 years. On April 8, 2003, complainant
was at work when he was called to the front office by a supervisor.
When he arrived at the front office, he was confronted by four (4)
Security Forces personnel who presented him with a letter indicating
that he had been barred from Bolling AFB (hereinafter Barment Letter).
These individuals then escorted him off the base.
The Barment Letter stated that based upon alleged previous incidents of
misconduct (Felony Burglary, December 21, 1990; Aggravated Arson, December
2, 1994; Possession of a Controlled Dangerous Substance, August 15, 2001)
the Commander of the AFB determined that complainant's continued presence
on the base would be detrimental to the maintenance of good order and
discipline. The Barment Letter also stated that effective immediately,
complainant was ordered to not enter Bolling AFB for a period of ten
(10) years.
Complainant subsequently appealed the barment through the 11th Security
Forces Squadron and a letter to the Commander. In his formal complaint,
complainant indicated that a Security Forces Staff Sergeant, who was not
involved in the events that transpired on April 8, 2003, assisted him
in his appeal. Complainant stated that the Staff Sergeant informed him
that a record check of complainant's name and social security number had
revealed no criminal record. The Staff Sergeant then requested that on
May 27, 2003, the complainant return to Bolling AFB to be fingerprinted
in order for the FBI to conduct a national background check. Complainant
complied with the Staff Sergeant's request.
On July 16, 2003, complainant initiated contact with an EEO Counselor
claiming that he was discriminated against because of his race
(African-American) when, on April 8, 2003, he was served a Letter of
Barment by the Bolling AFB Security Forces Investigation personnel and
was escorted of the AFB.
According to complainant's formal complaint, on July 17, 2003, complainant
called the FBI and was informed that his fingerprints were never
submitted from Bolling AFB. Complainant stated in his complaint that
this was the day he came to realize he was being discriminated against.
On September 3, 2003, complainant was informed that the fingerprints he
had given in May were misplaced and he would need to return to the AFB
to be fingerprinted again.
According to the EEO Counselor report, no attempt at informal
resolution could be offered due to the criminal allegations involved.
Complainant filed a formal complaint on September 16, 2003. The final
agency decision, issued on February 20, 2004, dismissed complainant's
complaint for untimely contact with an EEO Counselor pursuant to 29
C.F.R. � 1614.107(a)(2). Complainant filed an appeal with the Commission
on March 8, 2004.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of race (African-American)
when, on April 8, 2003, he was served a Letter of Barment by the Bolling
AFB Security Forces Investigation personnel, was escorted off the base
by Security Forces and on July 17, 2003 when he was informed that his
fingerprints had never been submitted to the FBI.
The record discloses that during informal, pre-complaint processing with
an EEO counselor, complainant stated that his claim of discrimination was
based upon 1) his receipt of the Barment Letter on April 8, 2003 and 2)
his subsequent removal from Bolling AFB. According to the EEO counselor
report complainant made no other allegations of discrimination.
Upon filing his formal complaint on September 16, 2003, complainant
alleged that, in addition to what was discussed in EEO counseling, he was
discriminated against on July 17, 2003 when he learned that the Security
Force had never submitted his fingerprints to the FBI. Complainant stated
in his complaint that this was day he came to realize that he was being
discriminated against. The record indicates that the events of July
17, 2003 were not discussed in EEO counseling and complainant made no
allegation of discrimination concerning his fingerprints.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
Applying the foregoing standard to the facts presented in this case, the
Commission finds that the additional allegations raised in complainant's
complaint, which were not raised during EEO counseling sessions, are not
like or related to the allegations made regarding the Barment Letter
and removal from Bolling AFB. Specifically, we find that the agency
personnel who were involved in issuing and delivering the Barment Letter
and escorting complainant from the property are entirely different from
those who assisted complainant during the appeal of his barment, including
submitting his fingerprints to the FBI. Further, the Commission finds
that the additional allegations do not add to or clarify the allegation
that the Barment Letter and removal from the AFB were discriminatory.
Therefore, we find that the agency's decision to dismiss appellant's
additional allegations pursuant to 29 C.F.R. � 1614.107(a)(2) was
appropriate.
In addition, the record discloses that the alleged discriminatory event
occurred on April 8, 2003, but complainant did not initiate contact with
an EEO Counselor until July 16, 2003, which is beyond the forty-five
(45) day limitation period. 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 complainant did not contact an EEO
Counselor until approximately one hundred and five (105) days after the
alleged discriminatory 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 her control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
Complainant stated in his formal complaint that he only realized he was
being discriminated against on July 17, 2003 after being informed that
his fingerprints were not submitted to the FBI and had been misplaced.
Yet, complainant initiated contact with the EEO Counselor on July 16,
2003, one day prior to the alleged last incident of discrimination.
Although complainant's brief in support of his appeal states that he was
relayed this information about his fingerprints on July 14, 2003, not July
17, this contention is contradicted throughout the record, including in
complainant's formal complaint and the EEO counseling report. Therefore,
it is the Commission's position that because complainant initiated contact
one day prior to the last alleged discriminatory incident, complainant
was fully aware of the alleged discriminatory matter on April 8, 2003.
Furthermore, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact set forth in 29 C.F.R. � 1614.105(a)(1).
Finally, while Commission regulations governing computation of time limits
allow for waiver and/or equitable tolling under 29 C.F.R. � 1614.604(c),
complainant has failed to set forth any evidence or argument to justify
tolling the time limits in this matter. The complainant argues in
his brief in support of appeal, that the agency should be equitably
estopped from asserting the untimeliness issue as a basis for dismissal
because the agency representatives made misleading affirmations as to his
reinstatement. Complainant alleges these misleading statements provided
him with �the promise of a prompt return to work that was unfortunately
not forthcoming.� Complainant relies on the holding in Currier v. Radio
Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (1998), to contend that
these alleged misleading statements establish an equitable estoppel that
precludes the agency from asserting untimeliness as a basis for dismissal.
Complainant also asserts that pursuant to Currier, he reasonably feared
that filing an EEO complaint would jeopardize his chances to gain relief
from the respondent agency voluntarily.
The Commission has previously held that an agency may not dismiss a
complaint based on a complainant's untimeliness, if that untimeliness
is caused by the agency's action in misleading or misinforming the
complainant. See Wilkinson v. United States Postal Service, EEOC
Request No. 05950205 (March 26, 1996). See also Elijah v. Department
of the Army, EEOC Request No. 05950632 (March 29, 1996) (if agency
officials misled complainant into waiting to initiate EEO counseling,
agency must extend time limit for contacting EEO Counselor). In addition,
an employer's affirmatively misleading statements that a grievance will
be resolved in employee's favor can establish an equitable estoppel that
effectively tolls limitations period for the filing of an EEO complaint.
Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (1998);
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518 (11th Cir. 1992).
Under those circumstances, an employee understandably would be reluctant
to file a complainant with the EEOC for fear he would jeopardize his
chances to gain relief voluntarily.
In complainant's formal complainant and his brief in support of appeal,
the complainant has not identified any statements made by a supervisor
from which he could have reasonably concluded that not only was the
decision of the Barment Letter being reconsidered, but that he would
be reinstated. The Security Forces Staff Sergeant who conducted the
background check on complainant was doing so as a result of complainant's
appeal of the Barment Letter, not because he was told by complainant's
supervisor that complainant was being reconsidered for his position.
In addition, there is no evidence in the record that any agency
representative promised to reinstate the complainant. Furthermore,
complainant's reliance on the Currier decision is misplaced in that the
appellant-employee in Currier identified specific statements made by one
is his supervisors from which he reasonably concluded not only that he
was being reconsidered for his position, but that he would be reinstated.
Here, complainant has submitted no such evidence.
In addition, although complainant indicates that he feared reprisal if
he pursued an EEO complaint, the Commission has repeatedly held that mere
fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO Counselor. See Duncan v. Department
of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik
v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).
Therefore, complainant has failed to set forth any evidence or argument
to justify tolling the time limits in this matter.
Accordingly, the agency's final decision dismissing complainant's
complaint is 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
__________________
Date