Cecil Ray Taylor, Complainant,v.Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionDec 12, 2001
01997204_r (E.E.O.C. Dec. 12, 2001)

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