Steven D. Aran, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 21, 2007
0120065306 (E.E.O.C. Feb. 21, 2007)

0120065306

02-21-2007

Steven D. Aran, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Steven D. Aran,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01200653061

Agency No. ARIMAK06JUN0241

DECISION

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

decision dated August 1, 2006, 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. In his

complaint, complainant alleged that he was subjected to discrimination on

the bases of color (White) and reprisal for prior protected EEO activity

under Title VII of the Civil Rights Act of 1964 when:

1. In January 2006, the agency conducted an AR-15 investigation against

complainant based on information discovered during an EEO fact finding

conference in November 2005; and

2. On June 9, 2006, complainant learned that his security clearance was

suspended.

The agency dismissed claim 1 on the grounds that complainant failed

to contact an EEO Counselor in a timely manner and claim 2 for failure

to state a claim. With respect to claim 1, the agency determined that

the AR-15 investigation occurred in January 2006, but complainant did

not contact an EEO Counselor until June 15, 2006, well beyond the time

limit for timely counselor contact.

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.

On appeal, complainant contends that he did not seek counseling regarding

the AR-15 investigation until June 2006 because he feared reprisal

from the agency. Specifically, in complainant's statement on appeal,

he indicates that he saw two other employees "being retaliated against,

dismantled and humiliated" and as such, feared that the agency would

retaliate against him as well. The Commission has held that fear of

reprisal, without more, will not toll the applicable EEO time limitations.

See Croft v. Department of the Army, EEOC 05970699 (August 1, 1997).

Complainant has failed to present persuasive arguments warranting an

extension of the applicable time for initiating EEO contact regarding

claim 1. Because we affirm the agency's dismissal of this matter on

the grounds of untimely EEO counselor contact, the Commission will not

address the agency's other grounds for dismissing claim 1.

The agency dismissed claim 2 in accordance with EEOC Regulation 29

C.F.R. � 1614.107(a)(1) for failure to state a claim. 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 the agency because of race, color, religion, sex, national origin,

age or disabling condition 29 C.F.R. �� 1614.103, .106(a).

In the present case, we find that the agency properly dismissed

claim 2 for failure to state a claim. The Commission finds that

claim 2 fails to state a claim because the Commission is precluded

from reviewing the validity of a security clearance determination.

See Thierjung v. Department of Defense (Defense Mapping Agency), EEOC

Request No. 05880664 (November 2, 1989); see also Policy Gudiance on

the Use of National Security Exception contained in � 703(g) of Title

VII of the Civil Rights Act of 1964, as amended, EEOC Notice No. N-915

(May 1, 1989).

Accordingly, the agency's final dismissing complainant's complaint is

affirmed for the reasons set forth herein.

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

February 21, 2007

__________________

Date

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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2

0120065306

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120065306