0120142435
10-27-2015
Andres M.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Andres M.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142435
Agency No. 14-40295-00366; [14-50063-01337]
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 17, 2014, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Logistics Management Specialist at the Agency's NAVSUP Global Logistics Support Ammunition Directorate facility, in Cumberland, Pennsylvania.
On February 13, 2014, Complainant contacted an EEO Counselor.2 On May 19, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the basis of disability (perceived) when:
1. In March 2013, Complainant was issued a Notice of Decision removing him from Federal service for charges of failure to follow supervisory instructions and impertinent behavior towards a supervisor;
2. On August 24, 2012, he was issued a Notice of Proposed Suspension;
3. On April 12, 2012, he was issued a Notice of Decision of Suspension for five days for failure to follow supervisory instruction;
4. On March 19, 2012, he was harassed regarding possible revocation of his security clearance;
5. On March 9, 2012, he was harassed by issued a Notice of Proposed Suspension;
6. On February 29, 2012, he was harassed by being issued a Letter of Instruction regarding email procedures;
7. On September 28, 2011, he was harassed by being subjected to a psychiatric evaluation;
8. On May 24, 2011, his supervisor accused him of viewing inappropriate material on a personal computer;
9. On February 8, 2011, he was issued a Notice of Decision Reprimand;
10. On January 7, 2011, he was issued a Notice of Proposed Reprimand for allegedly emailing outside the chain of command;
11. On an unspecified date, he was harassed when his supervisor placed Complainant's desk outside of the supervisor's cubicle; and
12. On an unspecified date, he was regarded as disabled by four management officials.
The record shows that, on February 13, 2013, Complainant received a Notice of Proposed Removal and he signed the Notice acknowledging his receipt. In addition, Complainant received the Notice of Decision, by FEDEX, on March 20, 2013, and he received the Standard Form 50 (SF-50) personnel notification on December 2, 2013.
In addition, the record shows that posters specifying the 45-day filing requirement were posted at Complainant's work site and that he received training on the EEO filing requirements during the relevant time period.
Agency Decision
The Agency dismissed claims 1 to 11 for untimely EEO contact. The Agency reasoned that the incidents at issue fell outside of the 45-day filing period for initiating EEO contact for a complaint. The Agency referenced the fact that Complainant received notice of his termination on March 20, 2013 and received the SF-50 on December 2, 2013. The Agency noted that there were 58 days between Complainant's receipt of the SF-50 and his initial EEO contact.
In addition, the Agency dismissed claims 11 and 12 as vague in that the allegations did not specify a timeframe and claim 12 did not identify the issue. The Agency next dismissed claim 11 (regarding the movement of his desk) for failure to state a claim.
ANALYSIS AND FINDINGS
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.
EEOC Regulations further 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, or 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.
The record discloses that the most recent alleged discriminatory event occurred on March 20, 2013, but Complainant did not initiate contact with an EEO Counselor until February 13, 2014, which is beyond the forty-five (45) day limitation period.
On appeal, Complainant argues that he is dissatisfied with the Agency's decision and wants to file a harassment charge against the Federal Management Team regarding new claims.
We find his EEO contact was untimely with regard to the claims 1 to 12, because Complainant presented no persuasive arguments or evidence, warranting an extension of the time limit for initiating EEO Counselor contact for the claims at issue. He also did not show that any of the "unspecified" incidents occurred within the 45 days of his EEO contact. Upon review, therefore, we find that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Since we are affirming the Agency's decision based on the untimely EEO contact, we will not address the Agency's alternative grounds for dismissal (vagueness and failure to state a claim).
Finally, because it is apparent from Complainant's appeal statement that he wishes to pursue additional claims that he raised for the first time on appeal, he should initiate contact with an EEO Counselor on these matters, if he has not previously done so already.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 27, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 On January 27, 2014, he filed an appeal with the Merit Systems Protection Board (MSPB).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142435
2
0120142435