Willie E. Graves, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01981681 (E.E.O.C. Apr. 13, 1999)

01981681

04-13-1999

Willie E. Graves, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Willie E. Graves v. Department of the Navy

01981681

April 13, 1999

Willie E. Graves, )

Appellant, )

)

)

v. ) Appeal No. 01981681

) Agency No. 998-62793-001

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

On December 24, 1997, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on December 6, 1997,

pertaining to his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq. In his complaint, appellant alleged that he was

subjected to discrimination on the bases of race (Black) and in reprisal

for prior EEO activity when:

On April 7, 1997, appellant was denied an opportunity to provide input

or participate in the development of the new Engineering Department

organizational structure at SUPSHIPNN prior to commencement of the PERA

(CV) move;

On April 7, 1997, and July 15, 1997, appellant was denied an opportunity

to meet key PERA personnel with the status of being a member of any of

the prestigious PERA transition teams prior to commencement of the PERA

(CV) move;

On March 26, 1997, and April 18, 1997, appellant was denied the

opportunity to participate in developing a strawman plan to backfill

unencumbered positions, including the new PERA (CV) head engineer position

(GM-15), prior to the commencement of the PERA (CV) move;

Although he suggested that the LSV-2 Project position be filled

competitively, on July 18, 1997, appellant was not appointed to write

the LSV-2 Project competitive position description;

Management officials secretly provided appellant's white co-worker

advance knowledge of job-enhancing experiences that were later used

as justification for key assignments that could likely lead to a career

promotion - for example, appellant was not provided information pertaining

to a carrier overhaul operation in Puget Sound in January or February

1997;

On March 5, 1997, appellant's supervisor, with approval of his superior,

attempted to delete from appellant's position description all Special

Program collateral duties; and

Although appellant was the Engineering Department's senior GM-14,

appellant's supervisor appointed a co-worker to participate in the 1997

Chief Engineering Conference in Kings Bay.

The agency dismissed allegations (a) through (f) pursuant to EEOC

Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact

with an EEO Counselor in a timely manner. Alternatively, the agency

dismissed allegations (a) through (g) pursuant to 29 C.F.R. �1614.107(a),

for failure to state a claim. Specifically, the agency determined that

appellant's September 18, 1997 initial EEO Counselor contact occurred

more than forty-five (45) days from the dates on which the incidents of

alleged discrimination took place, and was, therefore, untimely. Further,

the agency concluded that appellant failed to identify how the incidents

adversely affected the terms, conditions or privileges of his employment.

Consequently, the agency determined that appellant was not aggrieved.

On appeal, appellant contends that the agency improperly identified

the dates on which the incidents of alleged discrimination took place.

Appellant asserts that the dates used by the agency were the dates on

which his co-workers were provided the opportunities associated with

the PERA (CV) move. Appellant argues that he was not aware that he

had been discriminated against until September 2, 1997, the date of

the PERA (CV) move, because until that time he believed he would be

provided the opportunity to participate in some capacity with the move.

As his initial EEO Counselor contact occurred within forty-five (45)

days of the PERA (CV) move, appellant asserts that it was timely.

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 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 Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). 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 his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In the instant case, appellant contends that he was not aware of

the alleged discrimination until the date of the PERA (CV) move on

September 2, 1997. However, appellant's submissions on appeal belie

that contention. With regard to allegation (a), the record contains

a memorandum dated April 7, 1997, in which appellant indicated that he

was upset that his co-worker was appointed to the PERA (CV) transition

team because it appeared to be similar to past actions management took

whereby white individuals were placed in a position over appellant.

As a footnote to that memorandum, appellant stated, "I am not satisfied

with the discriminatory and disrespectful actions of top management.

I feel that management is intentionally reprising (sic) against me

by excluding me from any key position, committee, or job assignment."

Based on the foregoing, we find that on April 7, 1997, appellant clearly

suspected that his non-selection as a member of the PERA (CV) transition

team was discriminatory. As appellant did not initiate contact with an

EEO Counselor until more than forty-five (45) days later, we find that

it was properly dismissed for untimeliness.

In allegation (c), appellant alleged that he was discriminated against

when he was not provided the opportunity to participate in developing a

strawman plan to backfill unencumbered positions prior to the commencement

of the PERA (CV) move. The record contains a memorandum dated June 6,

1997, in which the agency announced that appellant's co-worker was

selected to act as the representative from appellant's work location

for the creation of the PERA (CV) organization structure and a strawman

plan to backfill unencumbered positions. We find that appellant should

have suspected discrimination at this time, especially in light of his

prior suspicions that the agency was subjecting him to reprisal for his

prior EEO activity. Accordingly, we find that appellant's September 18,

1997 initial EEO Counselor contact was untimely with respect to this

allegation.

In allegation (e), although appellant alleged that the agency withheld

from him advance knowledge of job-enhancing experiences, he provided

only one such example of this alleged disparate treatment. Absent any

other examples of advantages conferred on appellant's co-worker, we find

that appellant should have suspected discrimination upon learning that

his co-worker was sent to a carrier overhaul operation in Puget Sound

in January or February 1997. As appellant's September 18, 1997 initial

EEO Counselor contact occurred more than forty-five (45) days after this

date, we find that it was untimely.

The record further contains a memorandum from appellant dated March 11,

1997, in which he indicated that he felt that the collateral duties were

being removed from his position description as a result of his prior EEO

complaint. We find, therefore, that appellant suspected discrimination

on or about that date. As appellant did not initiate contact with an

EEO Counselor concerning this issue until September 18, 1997, we find

that dismissal of allegation (f) pursuant to 29 C.F.R. �1614.107(b)

was proper.<1>

The Commission finds that the agency erred in dismissing allegation

(d) for untimeliness. Although the agency identified July 18, 1997,

as the date on which appellant was not appointed to write the LSV-2

Project competitive position description, the record discloses otherwise.

The record contains a memorandum from appellant dated August 28, 1997,

in which he discloses that on August 25, 1997, a coworker was selected

to write the position description for the LSV-2 project. As the record

contains no evidence suggesting that this decision was made prior

to that date, we find appellant's contention that he did not suspect

discrimination until that date is supported by the record. Moreover,

as appellant's September 18, 1997 initial EEO Counselor contact occurred

within forty-five (45) days of this incident, we find that it was timely

raised.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case 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 (April 21, 1994).

With regard to allegation (b), we find that appellant failed to show that

he suffered any tangible harm to the terms, conditions or privileges

of his employment as a result of the denial of the opportunity to meet

key PERA personnel with the status of being a member of any of the

prestigious PERA transition teams. Any alleged harm caused by the lack

of this status is speculative at best and insufficient to render him

aggrieved under the EEOC regulations.<2>

However, in allegation (g) appellant alleged that he was denied

the opportunity to go to a business conference attended by a junior

co-worker. We find that this allegation directly concerns a term,

condition or privilege of employment, as it relates to the denial of an

identified opportunity afforded other employees in appellant's position.

Consequently, we find that the agency erred in dismissing this allegation

pursuant to 29 C.F.R. �1614.107(a).

Accordingly, the agency's decision to dismiss allegations (a), (b),

(c), (e), and (f) is AFFIRMED for the reasons set forth herein. The

agency's decision to dismiss allegations (d) and (g) is hereby REVERSED.

Allegations (d) and (g) are REMANDED to the agency for further processing

in accordance with this decision and the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. 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 this decision becomes final, 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 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 (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(c) (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. �1614.604(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 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. 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:

April 13, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1Since we are affirming the agency's dismissal of allegations (a), (c),

(e), and (f) on the grounds of untimely EEO Counselor contact, we will not

address the agency's alternative grounds for dismissal, i.e., that those

allegations failed to state a claim.

2Since we are affirming the agency's dismissal of allegation (b) on the

grounds that it fails to state a claim, we will not address the agency's

alternative grounds for dismissal, i.e., that it was untimely.