0120083717
02-19-2009
Kenneth S. Harris,
Complainant,
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120083717
Agency No. 2008-0045-R06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 28, 2008, dismissing complainant's complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
On February 15, 2008, complainant initiated EEO counselor contact claiming
that he was subjected to discrimination on the bases of disability
and reprisal. Informal efforts to resolve complainant's concerns were
unsuccessful. On April 22, 2008, complainant filed a formal complaint.
The agency, in its decision, framed the claims in the following fashion:
1. In March 2006, [complainant] was detailed;
2. In March 2006, [complainant] was denied overtime pay;
3. On July 20, 2006, [complainant] was omitted from the Region 6 Hurricane
Katrina Awards;
4. In October 2006, [complainant's] detail became a permanent
reassignment;
5. In October 2006, [complainant] lost standby duty pay, and;
6. On January 19, 2008, [complainant] was terminated from Federal
employment.
In its July 28, 2008 final decision, the agency dismissed claims (1)
through (5) for untimely EEO counselor contact. The agency dismissed
claim (6) on the grounds that complainant had raised the same claim in
a union grievance prior to filing the EEO complaint.
Claims (1) through (5)
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have 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 discloses that the latest discriminatory event occurred on
October 2006, but that complainant did not initiate contact with an EEO
counselor until February 15, 2008, which is beyond the forty-five day
limitation period. On appeal, complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. Therefore, the agency properly
dismissed claims (1) through (5) for untimely EEO Counselor contact.
Claim (6)
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
concerning his termination identified in claim (6). Additionally,
the record shows that under the terms of the agency's union agreement,
employees have the right to raise matters of alleged discrimination
under the statutory procedure or the negotiated grievance procedure, but
not both. As the record indicates that complainant elected to pursue the
matter within the grievance procedure, we find that the agency properly
dismissed claim (6) pursuant to 29 C.F.R. � 1614.107(a)(4).
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 19, 2009
__________________
Date
2
0120083717
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083717