0120172108
09-14-2017
Dante B,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dante B,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120172108
Agency No. DLAN-17-0079
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 20, 2017, dismissing his complaint of unlawful employment discrimination in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's Defense Logistics Agency Installation Support at Susquehanna facility in New Cumberland, PA.
On January 19, 2017, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, on March 13, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. The Agency breached a settlement agreement signed on August 30, 2016; and
2. On November 10, 2016, he was issued the LOW which was subsequently rescinded on November 14, 2016.
On April 20, 2017, the Agency issued its final decision dismissing the complaint. The Agency dismissed claim (1) and determined that it would treat the matter as a separate claim of breach of the settlement agreement. As to claim (2), the Agency dismissed the claim pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant was issued the LOW on November 10, 2016 but contacted the EEO Counselor on January 19, 2017, well beyond the 45 day time limit. As such, the Agency issued its final decision and separately investigated Complainant's claim of breach of the settlement agreement.
On appeal, Complainant argued that the Agency's actions regarding the breach of the settlement agreement and the breach of confidentiality should state egregious claims of retaliation. As to claim (2), Complainant argued that the timeline for contacting the EEO Counselor should have been extended since the LOW was not rescinded until November 14, 2016. Further, he was seeking clarity on the matter and that the "180" day rule should apply. As such, Complainant asked that the Commission reverse the Agency's dismissal.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency properly separated Complainant's claim of breach of the settlement agreement. We note that claims of breach are to be processed by the Agency pursuant to 29 C.F.R. � 1614.405. Although Complainant has asserted that the Agency's alleged breach constituted unlawful retaliation, the crux of the issue is whether the Agency had breached the terms of the agreement itself. We take administrative notice that the Agency has processed Complainant's claim of breach and issue a final determination. Complainant filed an appeal with the Commission which has been docketed as EEOC Appeal No. 0120172726. Therefore, the Commission affirms the dismissal of Complainant's claim of breach and will address the merits of Complainant's claim in EEOC Appeal No. 0120172726.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) 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 Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant 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.
The record indicated that Complainant contacted the EEO Counselor on January 19, 2017, regarding the LOW which was issued on November 10, 2016, which was rescinded on November 14, 2016. Complainant asserted that he was trying to resolve the matter with the Supervisor. The Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. U.S. Postal Serv., EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S. Postal Serv., EEOC Request No. 05910291 (April 25, 1991); Ellis v. U.S. Postal Serv., EEOC Request No. 01992093 (Nov. 29, 2000). Therefore, the Agency properly dismissed claim on the grounds of untimely EEO Counselor contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 14, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant indicated that he received the decision on May 1, 2017.
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