0120162617
01-11-2017
Clayton C,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clayton C,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120162617
Agency No. TVA20160025
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 15, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contractor at the Agency's Nuclear Security facility in Chattanooga, Tennessee.
On March 30, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for signing a route sheet when:
1. On or about August 27, 2015, the Agency improperly alleged that Complainant falsified fire watch documentation which resulted in an investigation being conducted by the Agency's Office of Inspector General (OIG);
2. On or about August 27, 2015, Complainant was terminated from his Agency assignment after his Unescorted Authorization Access (UAA) was denied; and
3. On or about October 16, 2015, Complainant was notified that his UAA clearance was permanently restricted.
The Agency dismissed the claims on the grounds of untimeliness and failure to state a claim. With regard to untimeliness, the Agency found that the most recent alleged discriminatory act occurred on October 16, 2015, but that Complainant did not contact an EEO Counselor until December 30, 2015, which is beyond the regulatory time limit. With regard to failure to state a claim, the Agency first found that the claims constituted a collateral attack against the OIG investigation and findings. In addition, the Agency also found that Complainant failed to state a claim because Complainant has not alleged discrimination for engaging in EEO activity but for "the activities around [Complainant] signing a route sheet as instructed by his foreman which caused OIG investigation seeking unsafe work performance." Such activities are not covered under EEO regulations.
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.
The record shows that Complainant first contacted an EEO counselor regarding the matters addressed in his complaint on December 30, 2015, well beyond the 45-day limitation period from the latest alleged discriminatory event (October 16, 2015). Conceding his failure to contact an EEO counselor within 45 days of the alleged incidents of discrimination, Complainant argues that the deadline should have been waived or extended. First, he contends that he was somehow prevented from contacting a counselor because he was removed from Agency premises on August 27, 2015, with little advanced notice. However, the record shows that he was able to file a written appeal in early September of the decision to deny his UAA clearance. In that appeal, he specifically wrote that, he "truly [did] not want to believe [he had] been discriminated against or retaliated against." Complainant also asserts that he was unaware of the 45-day limitation period. However, the record contains evidence that posters were displayed in Complainant's work areas with information about the deadlines for seeking EEO counseling. In sum, we find that Complainant has failed to adequately support his request to waive his untimely EEO counselor contact.
The Dismissal for untimely counselor contact is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
January 11, 2017
__________________
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 As such, we do not have to address the Agency's alternative grounds for dismissing the complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162617
2
0120162617