01a53296
10-06-2005
Donald D. Stephenson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security Agency.
Donald D. Stephenson v. Department of Homeland Security
01A53296
October 6, 2005
.
Donald D. Stephenson,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
Agency.
Appeal No. 01A53296
Agency No. HS-05-0465
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 9, 2005, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior EEO activity when:
on October 10, 2004, the agency changed his employment status from
Administrative Leave with Pay to Indefinite Leave Without Pay, to
implement management's August 25, 2004, decision notifying him that he
was suspended from duty without pay, effective August 27, 2004;
on December 10, 2004, the agency's Security Appeals Board upheld the
agency's decision to revoke his security clearance and determined that
reinstating his Top Secret security clearance was not �clearly consistent
with the interests of national security.�
The agency dismissed claim (1) for untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2), and claim (2) for stating a
claim that is pending before the Commission, pursuant to 29 C.F.R. �
1614.107(a)(1).
Regarding claim (1), EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires
that complaints of discrimination should be brought to the attention
of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. The Commission has adopted a �reasonable suspicion�
standard (as opposed to a �supportive facts� standard) to determine
when the forty-five day limitation period is triggered. See Howard
v. Department of Navy, EEOC Request No. 05970852 (February 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should have not known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits or for other reasons considered sufficient by the agency
or the Commission.
The record indicates that complainant was issued a letter of suspension
on August 25, 2004 ,which complainant did not receive until September
4, 2004. The agency argued that complainant should have reasonably
suspected discrimination on the date of receipt. On appeal, complainant
states that it was impossible for him to actually know whether the agency
intended to enforce a change in employment status because he continued
to receive compensation until early October 2004. We agree with the
agency in finding that complainant should have reasonably expected
discrimination on September 4, 2004, because this was the date he was
notified of the adverse personnel action. Given that complainant did
not initiate EEO Counselor contact until October 26, 2004, beyond the
45-day statutory period, we find that the agency properly dismissed his
complaint as untimely.
As for claim (2), we agree with the agency that complainant states the
same claim concerning complainant's security clearance revocation, which
is currently pending in a breach of settlement agreement claim before the
Commission in EEOC Appeal No. 01A51111. To the extent that complainant
alleges that this incident is part of an ongoing pattern of harassment,
it is the only incident he described in his formal complaint.<0> To that
end, we conclude that this security clearance revocation is an isolated
incident that is insufficient to state a claim of retaliatory harassment.
Therefore, the agency's dismissal was proper, pursuant to 29 C.F.R. �
1614.107(a)(1).
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 (S0900)
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 (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
October 6, 2005
__________________
Date
0 1We note that complainant sought to amend his
complaint on March 5, 2005, four days prior to the agency's March 9, 2005
decision. We are unable to ascertain from the record whether the agency
received this correspondence. In this correspondence, complainant alleged
two additional incidents as part of an ongoing pattern of harassment and
retaliation. These incidents included the agency's attempt to offset
his salary and remove him from his Special Agent position. As these
incidents are not part of the instant appeal, the Commission will not
consider them at this time. We recommend that complainant seek EEO
counseling if he wishes to pursue this matter further.