0120140562
04-07-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120140562
Agency No. P20130372
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 4, 2013, 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 Material Handler Supervisor at the Agency's FCI facility in Greenville, Illinois.
On May 6, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal when: (1) in September and November 2011, he was verbally reprimanded and investigated for inventory accountability problems; (2) he received a letter of counseling for inventory accountability problems in September 2012; and (3) on December 17, 2012, an arbitrator ruled in favor of the union and mentioned multiple violations by the Agency, but issues of harassment and retaliation were not addressed.
The Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency dismissed claims 2 and 3 for raising the same matter in a negotiated procedure that allows for claims of harassment to be raised.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1 and 2
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 incidents referenced in claims 1 and 2 are alleged by Complainant to have occurred no later than October 2012, but Complainant did not initiate contact with an EEO Counselor until January 22, 2013, which is beyond the forty-five (45) day limitation period. Complainant does not argue he was unaware of the time limits for contacting an EEO counselor. Therefore, to the extent that claims 1 and 2 are discrete acts, we find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact regarding those claims.
Claim 3
On appeal, Complainant states that the grievance referenced in his complaint dealt with the issue of keeping "secret files." He argues that he was subjected to "retaliatory investigations and retaliatory harassment" after he opposed the discriminatory practice of keeping the "secret files". Complainant said that he had been informed of the existence of the files, and when his request to see them was denied, he informed the union about them. He states that in October 2011, he was placed under investigation for the theft of 69 pairs of boots; in November 2011, he and two other employees were reprimanded; in January 2012, he received a lower rating; in May 2012, he was questioned about how he learned of the "secret files;" and in August 2012, staff had their hours changed. In September 2012, he testified before the arbitrator. In September 2012, he was referred for misconduct for missing special purchase orders. He also states that on October 16, 2012, he was issued a counseling letter.
As an initial matter, we note that none of the events raised in the grievance occurred within 45 days of when Complainant first sought EEO counseling in January 2013.
Complainant states that on January 10, 2013, he received a copy of the arbitrator's decision and he "became aware of the multiple violations of the law and the discriminatory element that personally effected [sic] the Complainant." Thus, he filed the EEO complaint at issue herein. He states that he "alleges retaliation based on the ongoing unwarranted investigations still pending from 2011, lowering of evaluations, letters of counseling, verbal abuse and reprimands, threatening meetings retaliatory harassment and hostile work environment." While not very clear, it appears that Complainant may be asserting that he did not reasonably suspect unlawful retaliation occurred until he received the arbitration decision. However, a fair reading of the complaint and related EEO counseling report, as well as his statement on appeal, show that Complainant reasonably suspected retaliation long before he filed the grievance. In fact, it was at least part of the reason for the grievance. Under the Commission's "reasonable suspicion" standard 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. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Moreover, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Accordingly, the Agency's final decision dismissing Complainant's complaint as untimely raised with an EEO counselor is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 7. 2014
__________________
Date
2
0120140562
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140562