Neal A. Reinemann, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionAug 18, 2006
01a55983 (E.E.O.C. Aug. 18, 2006)

01a55983

08-18-2006

Neal A. Reinemann, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Neal A. Reinemann,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A55983

Agency No. 9X1M05014

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 14, 2005, dismissing his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his

complaint, complainant alleged that he was subjected to discrimination on

the bases of age (D.O.B. 01/17/46) and reprisal for prior protected EEO

activity when: (1) his security clearance was revoked; (2) his removal

was proposed; and (3) he was subjected to a hostile work environment

since 1991.

The record reflects that, on September 2, 2005, an EEOC Administrative

Judge (AJ) issued an Order of Dismissal on the above-stated claims. She

found that claim (1) was untimely pursuant to 29 C.F.R. � 1614.107(a)(2),

because complainant's security clearance was revoked on January 13, 2003,

but he did not make his initial EEO contact until August 17, 2003, more

than 45 days after the incident. 29 C.F.R. �� 1614.105(a)(1), .107(a)(2).

With respect to claim (2), she dismissed the proposed removal pursuant

to 29 C.F.R. � 1614.107(a)(5), which requires dismissal of a proposal to

take a personal action. She noted that complainant appealed his actual

removal to the Merit Systems Protection Board (MSPB) in a mixed case

appeal. Finally, to the extent claim (3), an allegation of hostile work

environment, was related to complainant's untimely claim of revocation

of his security clearance, she found that complainant failed to assert a

timely adverse action upon which a continuing violation of hostile work

environment could be based. 29 C.F.R. �� 1614.105(a)(1), .107(a)(2).

The agency fully implemented the AJ's decision.

On appeal, complainant, through counsel, asserts that the agency provided

him with the official proposal to remove for failure to maintain security

clearance on August 21, 2003, and that the letter regarding his security

clearance being revoked was not given to him until August 12, 2003,

rather than the June 6, 2003 date appearing on the letter. In light of

these dates, he maintains that his EEO Counselor contact was timely as

to claim (1). Further, with respect to the January 22, 2003 date, which

the AJ cites as the notification of revocation of security clearance,

complainant argues that the notification was tentative, pending his

appeal to the Defense Office of Hearing and Appeals (DOHA). As such,

he argues that his hostile work environment claim is also timely, and he

describes the ongoing reprisal and harassment the agency has allegedly

created since 1991. Finally, he maintains that, because documentation

included in the DOHA's investigation was not made known to him, he was

unaware of numerous issues and false statements against him.

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss

a complaint or a portion of a complaint which fails to comply with the

time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved

person is required to 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. See 29 C.F.R. � 1614.105(a)(1). 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 further provide for extensions to the time limit when

the individual shows that he or she was not notified of the time limits

and was not otherwise aware of them, that he or she did not know and

reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he or she was

prevented by circumstances beyond his or her control from contacting

the Counselor within the time limits, or for other reasons considered

sufficient by the agency or the Commission. 29 C.F.R. � 1614.105(a)(2).

In the present case, we agree with the AJ's finding that complainant

failed to initiate timely EEO Counselor contact as to claim (1).

The record reflects that on January 13, 2003, complainant's security

clearance was revoked, and he signed a dated letter of receipt on

January 22, 2003. Although he argues that the security clearance was

only tentatively revoked, pending a decision by DOHA, we find that the

relevant date is in fact January 13, 2003, when he became aware of the

revocation, as opposed to when the DOHA made its ultimate decision.

Complainant also argues that he was unaware of numerous issues and

false statements against him. However, he does not provide a date

on which he began to form a "reasonable suspicion" of discrimination,

and without more information, we cannot find that his knowledge of the

false statements trigged his suspicion of discrimination. Accordingly,

we find that claim (1) was properly dismissed.

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides that the

agency shall dismiss a complaint that alleges that a proposal to take a

personnel action, or other preliminary step to taking a personnel action,

is discriminatory. Here, claim (2) involves a proposed removal, and thus

must be dismissed.1 Accordingly, we affirm the dismissal of claim (2).

Finally, with respect to claim (3), a complainant alleging a hostile

work environment will not be time barred if all acts constituting

the claim are part of the same unlawful practice and at least one

act falls within the filing period. See National Railroad Passenger

Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). In the present case,

however, complainant failed to assert a timely adverse action upon

which a continuing violation of hostile work environment could be based.

Accordingly, claim (3) was also properly dismissed.

After a careful review of the record, the Commission affirms the agency's

final order implementing the AJ's dismissal.

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

___8-18-06_______________

Date

1 Complainant is reminded that, to the extent he filed a mixed case

appeal with the MSPB, and the MSPB issues a final decision, he may

petition the EEOC to consider that decision. 29 C.F.R. � 1614.303.

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01A55983

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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01A55983