0120120393
03-29-2012
Seyed B. Hashemi, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Seyed B. Hashemi,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120393
Agency No. ARPOM11MAR03368
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 28, 2011, dismissing his complaint of unlawful
employment discrimination. Upon review, the Commission finds that
Complainant's complaint was properly dismissed in accordance with EEOC
regulations.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Senior Instructor at the Agency’s Persian Farsi School in Monterey,
California.
On September 15, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the basis of reprisal for
prior protected EEO activity when:
a. since October 2009, he did not receive rank adjustment from Senior
Instructor to Assistant Professor;
b. since October, 2009, he did not receive an updated computer;
c. since October 2009, his office desk did not have a working key;
d. in July 2007, Complainant alleges that he had an offer of employment on
track for tenure with a salary of $55,000 per year. Complainant further
alleges that six months later he was available for the position, and
was told to start work in May 2009 with a salary of only $47,000; and
e. on March 17, 2011, he learned that his appointment not to exceed
the date of March 25, 2011 would not be extended which resulted in his
termination from the Agency's Persian-Farsi Department.
In its final decision, the Agency dismissed claims a, b, c, and d,
pursuant to EEOC Regulation 29 C.F.R. §1614.107(a)(2), on the grounds
that Complainant failed to bring the incidents to the attention of an
EEO Counselor in a timely manner.
The Agency dismissed claim e, pursuant to 29 C.F.R. §1614.107(a)(1),
for failure to state a claim, on the grounds that Complainant failed to
allege that he had previously engaged in protected EEO activity.
The instant appeal followed without further argument from Complainant.
ANALYSIS AND FINDINGS
With regard to claims a, b, c, and d, 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 events raised in
claims a-d occurred well before Complainant’s March 21, 2011 initial EEO
counselor contact. Complainant has not provided any justification for
the delay or reason to excuse it. Therefore, we find that the Agency's
dismissal of claims a, b, c, and d in accordance with EEOC Regulation
29 C.F.R. § 1614.107(a)(2) was proper.
With regard to claim e, the Agency dismissed for failure to state
a claim, noting reprisal was the sole basis alleged by Complainant,
but he proffered no indication that he had previously engaged in EEO
activity or opposition to discrimination. The record shows that during
EEO counseling, Complainant was specifically asked about his prior
protected activity, and indicated that he believed his appointment was
not extended because he asked a question about the EEO process during an
open meeting at which his supervisor was present. Complainant did not
provide a date when this meeting occurred. Even presuming the meeting
occurred as alleged by Complainant, we find that this would not have
constituted protected activity to render his reprisal claim viable.
Accordingly, the Agency's dismissal of the basis of reprisal on the
grounds of failure to state a claim was proper. We concur, therefore,
with the Agency's dismissal of claim e for failure to state a claim.
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 29, 2012
__________________
Date
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0120120393
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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