0120101448
07-29-2010
Joseph S. Scerba, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Joseph S. Scerba,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120101448
Agency No. IRS100019F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 13, 2010, 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race (White) and sex (male) when:
1. On or about May 29, 2009, Complainant learned he had not been selected
for the position of Supervisory Internal Revenue Agent/Global Team
Manager, IR-0512-3 under Vacancy Announcement Number 60-63-LMM90399.
The Agency dismissed the claim for untimely EEO Counselor contact, noting
that complainant learned of the alleged discriminatory event on or about
May 29, 2009 but did not contact an EEO Counselor until September 8, 2009,
which is beyond the 45-day regulatory limit. The Agency further noted
that Complainant was asked to explain his EEO Counselor contact was late.
Complainant responded that after learning of his nonselection, he met
with three other White males who had also applied for the position and
had not been selected. The four unsuccessful applicants agreed that
their nonselection was discriminatory, and after contacting various
attorneys they decided to contact their EEO office, which one of the four
unsuccessful applicants (UA1) did on July 1, 2009. It is beyond dispute,
however, that Complainant himself did not contact an EEO Counselor at
this time. Instead, Complainant alleges that UA1 told the EEO Counselor
(EC) that he was speaking on behalf of himself and three others and that
EC then told UA1 that as White males, none of the four men had any grounds
to bring a complaint. According to Complainant, EC told UA1 that as White
males they were not members of any protected class except for being over
the age of 50 and that since the Selectee (S) for the position was also
over 50, there were no grounds for a complaint. Complainant states that
the men were subsequently advised by an attorney that they were entitled
to use the Federal EEO complaint process and that they should each contact
an EEO Counselor. Complainant presented an affidavit dated September 9,
2009, wherein he asks for an extension of the 45-day limit on the grounds
that "had I been provided with accurate information by the EEO Counselor
who spoke with [UA1] I would have pursued this matter in early July."
Complaint File.
The Agency noted that EC recalled speaking with UA1 and according to
her recollection, UA1 mentioned the three other unsuccessful applicants
who similarly felt they had been discriminated against, but UA1 did
not mention their names. EC said that she told UA1 that these others
needed to contact a Counselor themselves. EC further stated that she
would never have informed anyone that White males are not a protected
class under EEO law or that they could not pursue an EEO complaint.
In addition, EC stated that as an EEO professional, she knows that for
age-based claims, a complainant must be over 40 years of age, and that
she would never have used 50 to describe the age-based protected class.
The Agency determined that EC's statement was more credible than
Complainant's statement and concluded that UA1 simply misunderstood EC
and passed the incorrect information on to Complainant and the other
unsuccessful applicants. The Agency next noted that Complainant had
filed a previous complaint based on race and that he therefore was not
only aware of the relevant timeframes, but he also knew that he could
pursue a complaint based on his race. The Agency further found that
UA1 was not acting as Complainant's representative because UA1 did not
identify Complainant when he spoke to the Counselor and Complainant
never notified the Agency that UA1 was his representative.
On appeal, Complainant disputes EC's version of events, and argues that
the Agency made inappropriate credibility determinations regarding his
version of events as opposed to EC's version. Complainant further argues
that EC's version of events makes no sense since all of the unsuccessful
candidates knew that they could not pursue an age claim because S was
approximately the same age. Complainant maintains that all of the men
only ever considered sex and race as bases for their complaints, not age.
The Agency argues that UA1's contact cannot be imputed to Complainant's
complaint because UA1 was not acting as Complainant's representative.
Furthermore, the Agency argues, Complainant's reliance on a co-worker's
misinformation does not make the Agency responsible for Complainant's
untimely contact. In addition, the Agency rejects Complainant's claim
that EC's statements about her contact with UA1 lack credibility because
they were made many months later. Instead, the Agency points out, the
record shows that EC's notes about the contact were made less than 24
hours after the contact.
ANALYSIS AND FINDINGS
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 (45)
day limitation period is triggered. See Howard v. Department of the 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In this case, Complainant contends that he was indirectly misinformed
by EC that as a White male, he could not use the EEO process to pursue
his allegedly discriminatory non-selection. According to Complainant,
this is why his EEO Counselor contact was beyond the 45 day time limit.
An Agency may not dismiss a complaint based on a complainant's
untimeliness, if that untimeliness is caused by the agency's action in
misleading or misinforming the complainant. See Wilkinson v. United States
Postal Service, EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah
v. Department of the Army, EEOC Request No. 05950632 (Mar. 29, 1996)
(if agency officials misled complainant into waiting to initiate EEO
counseling, agency must extend time limit for contacting EEO Counselor).
However, in this case, the Commission does not find that Complainant was
misinformed by the Agency. Complainant does not dispute that he did not
contact the EEO Counselor until September 8, 2009, nor is he alleging
that he personally was misinformed by the EEO office. We do not find
that Complainant's reliance on what another employee told him about the
EEO process is sufficient to establish that the agency misled him.
Accordingly, the Agency's decision to dismiss the complaint was proper
and is hereby 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
July 29, 2010
__________________
Date
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0120101448
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101448