The agency and most of his attempts at EEOC found no discrimination, until somebody used the McGivern case as an example against: separately rejecting each incident alleged for varying reasons, represents an erroneous piecemeal method for addressing the overriding harassment allegation presented herein.
Rickey D. Brown v. Department of the Army
05970558
September 18, 2000
.
Rickey D. Brown,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05970558
Appeal No. 01956647
Agency No. T-0735-AK0A-06-95-RO
DECISION ON REQUEST TO RECONSIDER
On March 1, 1997, Rickey D. Brown (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Ricky D. Brown v. Togo D. West, Jr.,
Secretary, Department of the Army (National Guard Bureau), EEOC Appeal
No. 01956647 (February 21, 1997).<0> A timely cross request was received
from the agency on March 25, 1997. <2> EEOC Regulations provide
that the Commission may, in its discretion, reconsider any previous
Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. § 1614.405(b)).For the reasons set
forth herein, it is the decision of the Commission to deny the agency’s
request for reconsideration, to grant the complainant’s request for
reconsideration, and to reconsider a portion of the previous decision
on its own motion.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
remanded complainant’s complaint for a determination as to whether it
should be accepted under a continuing violation theory.
BACKGROUND
Complainant initiated EEO counseling on May 11, 1995, and thereafter
filed a formal complaint in July 1995 in which he alleged discrimination
and harassment based on his race (Black) with regard to numerous agency
actions. These included a delay in the completion of a particular report
of investigation and alleged discrimination in the completion of a
second 15-6 investigation into incidents of racial harassment in the work
environment<3>; alleged agency delay, mishandling, and misrepresentation
of his OWCP claim; receipt of a February 1994 absence without leave
(AWOL) in his civil service capacity when he was on medical leave in
his military capacity; and several incidents of racial epithets and race
related threats made in the work environment.<4>
In a final decision dated August 9, 1995, the agency dismissed all
complainant’s allegations for various reasons, including failure to
state a claim and for not having been raised with the EEO Counselor.
After complainant filed his appeal, the agency issued a revised final
decision dated February 28, 1996, in which it again dismissed all issues,
but for different reasons. Some issues were dismissed for being both
moot and untimely; other issues were dismissed as untimely; and still
other issues were also dismissed as not having been raised with the EEO
Counselor.
The prior decision, which treated the second final decision (FAD) as
controlling, initially noted that, although complainant had alleged a
continuing violation, the agency had not addressed that question prior
to dismissing most of the issues as untimely. For that reason, the
decision, in accordance with Guy v. Department of Energy, EEOC Request
No. 05930703 (January 4, 1994), remanded complainant’s complaint for a
determination as to whether he had established a continuing violation.
The decision also reversed the dismissal of two issues for mootness,
noting that, although complainant had asked for compensatory damages
in his complaint, the agency had not addressed his entitlement to
such damages prior to dismissing those issues as moot. Finally, the
decision reversed the dismissal of several other issues, finding that,
although they may not have been raised with the EEO Counselor, they were
“like or related” to issues that had been raised with the Counselor.
In support of his request to reconsider, complainant argues that the
agency should be required to investigate the hazing incident during
which he was apparently tied up in a chair and gagged by co-workers whom
complainant asserts are members of the KKK. The record reveals that,
although this allegation was raised with the EEO Counselor, complainant
did not include it in his formal complaint.
The agency, in its cross request, argues that it was error for the prior
decision to have ordered a supplemental investigation on the question
of continuing violation. Specifically, the agency states that, at the
time it issued its final decision, it had already determined that such
a violation did not exist.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. §1614.405(b) is met.
In his request for reconsideration, complainant asserts that the agency
should be required to process the hazing incident. While complainant did
not specifically refer back to this incident in his formal complaint, we
are persuaded by the fact that he raised it during EEO counseling and from
the tenor of his overall allegation of a pattern of racial harassment by
the agency, that he intended to include this incident therein. Therefore,
we will grant complainant’s request for reconsideration and will consider
this incident as contained within his overall harassment claim.
We find, however, that the agency’s request for reconsideration should
be denied. Although the agency says it determined that a continuing
violation did not exist, the FAD did not address that question. In this
regard, we have previously held that, where a complainant has alleged a
continuing violation and the agency’s final decision fails to address that
question prior to dismissing the complaint as untimely, the complaint
“must be remanded for consideration of this question and issuance of
a new final agency decision making a specific determination under the
continuing violation theory.” Williams v. Department of Defense, EEOC
Request No. 05920506 (August 25, 1992). Therefore, we find that it was
proper for the prior decision to remand the complaint for a supplemental
investigation. At this point in the processing of the case, however,
the Commission deems it more expedient to reconsider the prior decision
on its own motion and address whether complainant has established a
continuing violation.
The Commission has held that the 45-day time requirement for initiating
EEO counseling can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990).
Based on our review of the record, we find that complainant has,
for several years and in different forums, alleged that he has been
subjected to an overriding pattern of racial harassment. Specifically,
complainant has alleged that on separate occasions, he was bound to a
chair and gagged, and later tied to a metal grate by KKK members. He
asserts that he was repeatedly subjected to racially offensive
language, and was threatened by white supremacists. We further find that
complainant’s allegations concerning the agency’s alleged misfeasance in
its investigations of these racially harassing incidents, its alleged
attempts to thwart his claim for OWCP benefits and the problems he
encountered in utilizing his civilian leave as a result of injury caused
by the incidents are included in this overall harassment claim.
The agency’s earlier fragmentation of complainant’s claim herein
by separately rejecting each incident alleged for varying reasons,
represents an erroneous piecemeal method for addressing the overriding
harassment allegation presented herein. Since complainant contacted
an EEO Counselor in March 1995, within 45 days of his termination and
while the problems regarding the agency’s internal investigation of his
harassment claim were ongoing, one or more of the incidents he alleged
were timely raised. Because we find that complainant’s allegations
concerning physical and verbal racial harassment, agency handling of
internal investigations of such incidents, and consequent injury related
claims culminating in complainant’s separation from agency employment are
interrelated elements of an overriding harassment claim, the Commission
holds that complainant has established a continuing violation. The agency
should fully investigate all aspects of this claim on remand.<5>
CONCLUSION
After a review of both parties’ requests for reconsideration, the
previous decision, and the entire record, the Commission finds that the
agency’s request fails to meet the criteria of 29 C.F.R. §1614.405(b),
but grants the complainant’s request for reconsideration and reconsiders
other aspects of the previous decision on its own motion. The decision
in EEOC Appeal No. 01956647 (February 21, 1997) remains the Commission’s
final decision, except as MODIFIED herein. There is no further right of
administrative appeal on the decision of the Commission on this Request
for Reconsideration.
ORDER (E0400)
The agency is ordered to process complainant’s claim of a pattern
of racial harassment, beginning with the 1991 hazing incident and
culminating in his May 1995 termination as defined above 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.
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).
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 18, 2000
__________________
Date
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 Opportunity Assistant
01 In February 1997, complainant submitted a number of documents
related to his case that were docketed as EEOC Appeal No. 01973146.
Because complainant had not, in fact, ever filed a second complaint
with the agency, that case was administratively closed and the submitted
documents added to the record in this case. This documentation includes
a letter written to the Director of the Commission’s Office of Federal
Operations in which complainant asserts that the agency improperly
removed him as of May 17, 1995 from his job based on illnesses caused by
the severe racial harassment involved herein. He requests reinstatement.
2On 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.
3Complainant alleged during EEO counseling, that while at work on one
occasion, in 1991, he was bound and gagged and on another later occasion
in 1994, he was wire tied to a metal grate by individuals whom he believed
to be members of the Ku Klux Klan (KKK).
4Complainant alleged that in 1993, a certain Sergeant referred to a
cross between a smurf and a black person as a “smigger.” In January
1994, troops in the break room allegedly stated in his presence that
various black civil rights leaders should be killed. In January 1995,
troops allegedly commented to complainant that they were white supremacy
members, that he “better not” be caught out somewhere, and that a tow
truck driver had been killed by skinheads a few years earlier.
5We advise the agency, however, that to the extent that certain aspects
of complainant’s claims arise solely within the authority of the agency’s
military operations, such matters are not considered to be within the
ambit of the Commission’s jurisdiction herein. See Birkle v. Dept. of
the Air Force, EEOC Request No. 05931001 (July 15, 1994).
