0120114259
03-14-2012
Rhonda Thomas, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Rhonda Thomas,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120114259
Agency No. 201123888FAA02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 17, 2011, dismissing her 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
At the time of events giving rise to this complaint, Complainant worked
as a General Engineer at the Agency’s National Headquarters facility
in Washington, DC.
On July 21, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American) and color (Black) when:
1a. On November 18, 2010, Complainant was removed from
her position as the System-Wide Information Management (SWM)
Acquisition Lead and reassigned to the Business Management Team;
1b. During November and December 2010, Complainant used her
scheduled vacation leave to prepare a rebuttal to the decision
to remove her from the position of SWIM Acquisition Lead;
1c. On January 13, 2011, Complainant’s former supervisor
allegedly verbally acknowledged that Complainant’s race and
or color played a pivotal role in her removal from the position
of SWIM Acquisition Lead.
2. On February 17, 2011, Complainant received a letter of
apology from her former supervisor which she believes contained
inaccurate information and was insincere; and
3. On July 21, 2011, Complainant did not receive proper notice or feedback
from the Agency’s Accountability Board.
In its final decision, the Agency determined that claims 1a-1c were
untimely filed. Specifically, the Agency found that the events described
in claims 1a-1c were discrete concrete acts all related to Complainant’s
removal from her position as SWIM Acquisition Lead, which occurred
in November and December 2010. The Agency determined therefore, that
Complainant’s EEO Counselor contact on March 21, 2011, regarding those
events was well beyond the applicable time limitation for EEO contact.
The Agency also dismissed claims 2 and 3 for failure to state a claim.
With respect to the alleged Agency conduct in claim 2, the Agency found
that Complainant failed to demonstrate that she was harmed with respect
to the terms and conditions of her employment. Specifically, the Agency
found that she was not subjected to any adverse employment action as a
result of the letter of apology she received from her former supervisor.
In claim 3, Complainant alleged that she did not receive proper notice
or feedback from the Agency’s Accountability Board in connection with
the instant complaint. A further reading of the record indicates that
Complainant alleged that the Agency improperly failed altogether to
report her concerns regarding her removal from the SWIM team to the
Agency’s Accountability Board.
The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact: 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 (45)
day limitation period is triggered. See Howard v. Dep’t of the Navy,
EEOC Request No. 05970852 (Feb. 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 claims 1a-1c occurred in November and December
2010, but Complainant did not initiate contact with an EEO Counselor
until March 21, 2011, which is beyond the forty-five (45) 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. In reaching this conclusion, the Commission notes
that Complainant has neither alleged that she was unaware of the time
limits for timely contacting an EEO Counselor nor does she indicate that
she was prevented for any reason from contacting an EEO Counselor in a
timely manner. In addition, in applying the reasonable suspicion theory
as described above, the record indicates that Complainant knew or had
a reasonable suspicion of discrimination long before her EEO Counselor
contact on March 21, 2011. On Complainant’s formal complaint she
indicates that she first became aware of the alleged discrimination
on November 18, 2010, the date of her removal from the SWIM team.
In addition, in the attachment to her formal complaint, Complainant states
that on November 18, 2010, she received no reply to an email she sent to
her first and second level supervisor questioning them about her removal.
She also indicates that on November 18, 2010, she “lost all trust and
confidence” in her supervisor because of his conduct in removing her
from her position. She states that the letter of apology she received
on February 17, 2011 “showed a clear bias and general undertone of
discrimination as [she] was treated differently and further aggrieved.”
However, she waited until March 21, 2011 to contact an EEO Counselor.
Regarding Complainant’s claims that the events described in claims 1a
through 1c were ongoing and constituted a hostile work environment the
Commission finds that the events surrounding Complainant’s removal from
the SWIM team were distinct, discrete acts which should have triggered
Complainant’s duty to act. Therefore, the Commission finds that the
Agency’s dismissal of claims 1a through 1c as untimely in accordance
with EEOC Regulation 29 C.F.R. § 1614.107(a)(2) was proper.
Failure to State a Claim: Claims 2 and 3
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
The Commission further finds that claims 2 and 3 fail to state a claim
under EEOC regulations. With respect to claim 2, the Complainant
failed to allege facts which if proven true and considered together,
would establish that she suffered harm or loss with respect to a term,
condition or privilege of her employment. She has not demonstrated that
she suffered any adverse employment action resulting from the apology
letter from her former supervisor. Concerning, claim 3, we find that
Complainant’s concerns about the Agency’s Accountability Board
are a collateral attack on another adjudicatory forum’s procedures.
The proper place for Complainant to address her procedural concerns
about the Accountability Board is within that process itself rather than
thorough the EEO complaint process. For these reasons, we find that the
Agency’s dismissal of claims 2 and 3 for failure to state a claim in
accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1) was proper.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED for the reasons set forth herein.
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
March 14, 2012
__________________
Date
2
0120114259
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114259