Paul C. Kelly,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A52358
Hearing No. 170-2005-00324X
Agency No. 1-04-1041
DECISION
Complainant filed an appeal with this Commission. We note that
complainant’s appeal at the time was premature. However, during the
pendency of his appeal, the agency has issued its final order, dated
September 14, 2005, implementing the dismissal by the EEOC Administrative
Judge (AJ) of complainant’s complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. Therefore, we find that the appeal is
ripe and is accepted pursuant to 29 C.F.R. § 1614.405(a).
Complainant was employed as an Operations Supervisor with the agency’s
Williamsport Automated Flight Service, at the Williamsport Regional Airport
in Montoursville, Pennsylvania. On March 9, 2004, complainant contacted
the EEO office and subsequently, on May 21, 2004, filed a formal complaint.
In his complaint, complainant alleged that he was subjected to a hostile
work environment on the bases of race (Black) and reprisal for prior EEO
activity. Complainant asserted that the hostile work environment was
created by the presence of a rope fashioned into the shape of a noose
hanging in the office of the Operations Manager. Complainant indicated
that he first noticed the hangman’s noose in December 2003. Complainant
noted that the rope was hanging there until a subordinate employee untied
it on February 18, 2004.
The matter was investigated. Complainant requested a hearing before an AJ.
The agency moved for the dismissal of the complaint for untimely EEO
contact. Granting the agency’s motion, the AJ dismissed the complaint
finding that complainant’s March 2004 contact was untimely since he first
became aware of the hangman’s noose in December 2003. As such, the AJ
dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2).
The complaint was remanded back to the agency. The agency issued its final
order implementing the AJ’s decision. On appeal, complainant argued that
the dismissal was inappropriate. Complainant asserted that the rope tied
into the shape of a hangman’s noose had been in plain view of the
Operations Manager’s coat rack in his office for at least nine months.
Further, complainant contended that the hangman’s noose was a symbol of
“oppression” and offended him since some of his ancestors were probably
hung with a rope. Additionally, he notes that the Operations Manager did
not directly confront complainant about the rope until mid-February 2004.
Therefore, complainant argued that his March 2004 EEO contact was timely
and the matter should be referred back to the AJ for a hearing.
EEOC Regulation 29 C.F.R. §1614.107(b) states that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in §1614.105, §1614.106 and §1614.204(c),
unless the agency extends the time limits in accordance with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person
must initiate contact with an EEO Counselor within 45 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action. EEOC
Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if the appellant can establish that appellant was not
aware of the time limit, that appellant did not know and reasonably should
not have known that the discriminatory matter or personnel action occurred,
that despite due diligence appellant was prevented by circumstances beyond
his control from contacting the EEO Counselor within the time limit, or for
other reasons considered sufficient by the agency or Commission.
In the case at hand, complainant claimed that he was subjected to a hostile
work environment based on the nine-month presence of a hangman’s noose in
the Operations Manager’s office. The Supreme Court has held that a
complainant alleging a hostile work environment will not be time barred if
all acts constituting the claim are part of the same unlawful practice and
at least one act falls within the filing period. See National Railroad
Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Here, based on
complainant’s complaint, the hangman’s noose was present in the Operations
Manager’s office until February 18, 2004. This last date of the presence
of the noose occurred less than forty-five days before complainant
initiated counselor contact. Accordingly, complainant timely initiated
contact with the EEO Counselor and the agency’s dismissal will be REVERSED.
The complaint is hereby remanded to the agency for further processing in
accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Philadelphia
District Office the request for a hearing within fifteen (15) calendar days
of the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. § 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)
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 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) (1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 24, 2006
__________________
Date
