0120142915
02-03-2015
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120142915
Agency No. AAFES 14.038
DECISION
On August 13, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 11, 2014, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Food Service Worker at the Agency's Grafenwoeher Exchange. He was stationed at its Burger King restaurant in Vilseck, Germany.
On April 3, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (Black/White), age (47 - 50), and reprisal for prior protected EEO activity under when:
1. In 2009 or 2010, Facility Manager 1 emphatically asked him to resign (but he did not do so);
2. Whenever there is new General Manager (while not clear, this appears to refer to the Burger King restaurant General Manager), s/he tries to get him to change his established work schedule of Monday - Friday, 1 PM to 8:30 PM to include working Saturdays, Sundays, and working prior to noon (albeit his schedule was not changed);
3. During the period of 2011 - 2013, two of his vehicles were damaged in the Burger King parking lot;
4. In or about December 2012, he was not interviewed or selected for a supervisory position at Popeye's restaurant in Vilseck, Germany;
5. On January 13, 2013, he received his 2012 Performance Evaluation where he was rated by his supervisor at Burger King (Supervisor 1) as satisfactory with a recommendation that he not be promoted;
6. In January 2013, his workers' compensation claim was denied;
7. He was issued a written reprimand on February 11, 2013, for leaving work early one evening by Supervisor 1;
8. For a period of time in 2013, his work hours were reduced, and in 2013 the Agency did not timely pay him for a time he used sick leave; and
9. In the Spring of 2013, he was not selected for a position at the Charlie's Steakery restaurant by Facility Manager 2.
After Complainant filed his complaint, to better clarify it, the EEO counselor spoke with him, and the above list is partly derived from that discussion. In this discussion the EEO counselor asked Complainant why he did not initiate EEO counseling within 45 calendar days (the time limit to do so), and he responded that he had little confidence in the EEO process, was hoping the incidents would stop, and that although things were better it was a matter of time before they would worsen because this occurred every time there was a new Facility Manager and General Manager.
The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling on February 5, 2014, beyond the 45 calendar day time limit. It found that Complainant was aware of this time limit, as evidenced by his taking online courses on December 29, 2010, and June 22, 2011, which he passed, on EEO rights. The record contains training records for Complainant which includes these classes. It also contains a copy of the course materials, which advise of the 45 calendar day time limit.
On appeal, Complainant argues that in the haste of the EEO process, he submitted only 70% of his materials, that there were more recent events, and he reserved the right to submit the information at a later date. He does not list any more recent events. Regarding the online classes, Complainant asserts that it is a normal practice for management to take online classes for employees with or without their approval, and he did not take the class.
Complainant also argues on appeal, in effect, that he did not form a reasonable suspicion of discrimination until February 3, 2014. Specifically, regarding not being interviewed for a supervisory position at Popeye's, Complainant previously indicated that the vacancy closed and management interviewed their candidates and made a selection by December 24, 2012. He contends that he attended three meetings regarding the denial in 2012 of his opportunity to interview for Popeye's. Complainant explains that at the third meeting around February 3, 2014, it was disclosed that Supervisor 1 failed to notify him of the interview, and at that point he requested the meeting terminate and moved to initiate EEO counseling. Complainant writes that he long suspected managers were intentionally hindering his advancement, but now it was confirmed.
Complainant also argues on appeal that his case is one of hostile work environment, and this was timely raised.
In opposition to the appeal the Agency argues that the FAD should be affirmed. It also argues that incident 6 fails to state a claim because it is a collateral attack on the Office of Workers' Compensation (OWCP) forum.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he was not notified of the time limit and was not otherwise aware of it, or did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). 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 (Feb. 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.
We take administrative notice that the Commission's case tracking system shows Complainant previously brought an administrative EEO claim, requested a hearing thereon, and in June 2008 an EEOC Administrative found no discrimination. The civilian Army component he brought the case against was in Germany. The Agency number was AREUGRAF07JAN000243, and the EEOC Hearing No. was 570-2007-00902X. Given this prior participation in the EEO process, we find Complainant had actual or constructive notice of the 45 calendar day time limit.
Complainant initiated EEO counseling on February 5, 2014. While he did not specify when in 2013 incidents 2, 3, and 8, occurred, he did not identify any specific examples thereof that occurred within 45 days prior to February 5, 2014, nor does he claim that there were any. We note that in his complaint, with regard to incident 3, Complainant wrote that on March 15, 2013, that he was ordered to work on Sundays but this was not implemented. This is the most recent example he gave thereof.
Complainant argues that he did not form a reasonable suspicion of discrimination until February 3, 2014. We disagree. As Complainant wrote, he long suspected that managers were hindering his advancement. Further, in January 2013, he received an unfavorable performance appraisal which contained the recommendation that he not be promoted, and he believes this was unwarranted. We find that Complainant formed a reasonable suspicion of discrimination long before February 3, 2014.
Because Complainant does not identify any incidents of discrimination which occurred within the 45 calendar day time limit, even if we construed his complaint as constituting one hostile work environment, it would still be untimely. We note, however, that even if a specific incident occurred within the 45 calendar day time limit, the record indicates there was not just one alleged hostile work environment. For example, incident 2, by definition revolves around new management coming on board, and incident 1 involves an incident perpetrated by a prior Facility Manager distant in time from most or all the other incidents.
We agree with the Agency that incident 6 fails to state a claim. 29 C.F.R. � 1614.107(a)(1). Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). OWCP has jurisdiction over workers' compensation claims processing, not the EEOC.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 3, 2015
__________________
Date
2
0120142915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142915