01997204_r
12-12-2001
Cecil Ray Taylor, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Cecil Ray Taylor v. Environmental Protection Agency
01997204
December 12, 2001
.
Cecil Ray Taylor,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01997204
Agency No. 99-0019-R7
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 1, 1999, dismissing his complaint of unlawful
employment in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
On August 18, 1998, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful. On November
23, 1998, complainant filed a formal complaint, alleging that he was the
victim of unlawful employment discrimination on the bases of religion
and sex.
In its final decision (FAD) of September 1, 1999, the agency determined
that complainant's complaint was comprised of two claims, that were
identified in the following fashion:
1. The activities of agency management (i.e., violations of his Lincoln
Law claims; ASARCO-OMAHA's Refinery 1860-1994 discharge to the Mississippi
River without a permit; Liberal, Kansas, Playa Lake Violations; violations
of the Clean Water Act; management engagement in fraud, concealment,
surveillance �robbery;� and bearing false witnesses) �smacked� at his
religious beliefs and created a hostile work environment for him; and
2. On June 21, 1998, complainant was removed from a GS-12 position as
Kansas-Nebraska NPDES Compliance Coordinator, and the position filled
with a GS-13 female doing the same job that complainant had performed
as a GS-12.
Regarding claim 1, the agency dismissed this claim pursuant to 29
C.F.R. � 1614.107(a)(1), finding that the incidents addressed therein
were unrelated to any employment matter. The agency dismissed claim 2
on the grounds of untimely EEO Counselor contact. The agency determined
that complainant's initial EEO contact of August 18, 1998, was more than
forty-five days after the alleged incident, relating to his removal from
a position on June 12, 1998.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The record contains no evidence supporting a finding that the various
incidents addressed in claim 1 alleged a loss or harm regarding a term,
condition, or privilege of complainant's employment. The agency decision
to dismiss claim 1 is AFFIRMED.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Claim 2 addresses a purported removal from an agency position on June
12, 1998. Complainant's initial EEO Counselor contact on August 18, 1998,
is more than forty-five days after the alleged incident. Complainant has
failed to present adequate justification for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss claim 2 for failure to initiate contact with an EEO Counselor
in a timely fashion was proper and is AFFIRMED.
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
December 12, 2001
__________________
Date