Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Aug 20, 2013

0120113566 (E.E.O.C. Aug. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120113566

Agency No. 2011-23957-RITA-01

DECISION

Upon review, the Commission finds that the Agency’s decision dated June 24, 2011,
dismissing Complainant’s complaint as alleging a proposed action and/or due to untimely EEO
Counselor contact pursuant to 29 C.F.R. §§ 1614.107(a)(5) and (2), respectively, was proper.
For the following reasons, we AFFIRM the Agency’s decision.

BACKGROUND

In his complaint, dated June 16, 2011, Complainant alleged discrimination based on sex (male)
when:

(1) on April 4, 2011, he was issued a notice of proposed demotion; and
(2) (a) in April, 2010, he was falsely accused of making comments with sexual
overtones; (b) in September, 2010, he was issued a letter of reprimand; and (c) in
2010, he was removed of his supervisory duties and assigned to a different office.

In its decision, the Agency dismissed claim (1) for alleging a proposal to take a personnel
action or other preliminary step to taking a personnel action pursuant to 29 C.F.R.
§1614.107(a)(5). The Agency also dismissed claim (2) due to untimely EEO Counselor
contact since Complainant did not contact an EEO Counselor until April 7, 2011, which was
beyond the 45-day time limit set by the regulations pursuant to 29 C.F.R. § 1614.105(a)(1).

Complainant indicates that the purpose of the instant appeal is to appeal the Agency’s dismissal
of claim (2)(a). Specifically, he did not know about the April, 2010 accusation until April 4,
2011; thus, his April 7, 2011 EEO contact was timely.
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ANALYSIS AND FINDINGS

With regard to claim (1), Complainant claimed that he was issued a notice of proposed
demotion. The record indicates that Complainant was issued the notice dated April 4, 2011,
for failure to follow instructions and for conduct unbecoming a supervisor on numerous
occasions from April to September, 2010. However, there is no evidence that the Agency
ultimately decided to demote Complainant following this proposed action. Thus, we find that
the Agency properly dismissed the claim since the action alleged was a proposed action to take
a personnel action or other preliminary step to taking a personnel action. 29 C.F.R.
§1614.107(a)(5).

With regard to claims (2)(a), we find this claim is more appropriately dismissed for failure to
state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Complainant was not aggrieved by the
alleged false accusation itself. To the extent that the alleged false accusation merges into the
proposed disciplinary action in claim (1), we find that such a claim is properly dismissed for
stating the same claims as claim (1) pursuant to 29 C.F.R. §1614.107(a)(1).

With regard to claims 2(b), and (c), the record indicates that the alleged incidents therein
occurred in 2010. Complainant contacted an EEO counselor regarding the matters on April 7,
2011, which was beyond the 45-day time limit set the regulations. On appeal, Complainant
presented no evidence warranting an extension of the time limit for initiating EEO Counselor
contact. Thus, we find that the Agency properly dismissed claims (2)(b) and (c) due to
untimely EEO Counselor contact. 29 C.F.R. § 1614.107(a)(2).

CONCLUSION

Accordingly, the Agency’s final decision 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
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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
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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

August 20, 2013
Date