Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120121080 (E.E.O.C. Mar. 14, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.

Appeal No. 0120121080
Agency No. RD-2011-00560

DECISION

Complainant filed a timely appeal with this Commission from the Agency’s decision dated
November 17, 2011, 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. Upon review, the Commission finds that Complainant’s complaint was
properly dismissed.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist at the Agency’s facility in St. Louis, Missouri. On July 11, 2011,
Complainant filed a formal complaint alleging that the Agency harassed him and subjected him
to discrimination on the bases of his race (Black) and in reprisal for prior protected EEO
activity when:

1) he was not informed at the time of his hiring in 2004, that he could negotiate for a
higher starting salary, but in 2006, a coworker negotiated to begin at a higher pay step;
2) on March 4, 2011, his supervisor sent him an e-mail, copying nonsupervisory
coworkers, requesting his response to another coworker’s accusations that Complainant
failed to complete tasks related to training;
3) on April 13, 2011, his supervisor sent him an e-mail reprimanding him for failing to
provide his back-up with advanced notice of a medical absence the previous day;
4) on April 14, 2011, a coworker informed Complainant that his supervisor said she was
going to “flame” him prior to sending the April 13, 2011, e-mail; and
5) on unspecified dates, his supervisor treated him and many of his coworkers in a
disrespectful manner.
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In its final decision, the Agency dismissed claim (1) for untimely EEO Counselor contact. The
Agency dismissed the remaining claims, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim.

ANALYSIS AND FINDINGS

We concur with the Agency’s dismissal of claim (1). 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 Howard v. Department of the Navy, EEOC Request No.
05970852 (February 11, 1999). Thus, 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. Complainant did not initiate EEO counselor contact
until April 20, 2011, which is well beyond the 45-day limitation period. Complainant states
that he only became aware of the difference in starting salary in 2011. The Commission has
consistently held that a Complainant must act with due diligence in the pursuit of his claim or
the doctrine of laches may apply. See O’Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable
remedy under which an individual’s failure to pursue diligently his course of action could bar
his claim. Thus, we find that Complainant’s claim is barred by the doctrine of laches, because
he waited over six years to contact an EEO Counselor.

With respect to the remaining claims, under the regulations set forth at 29 C.F.R. Part 1614,
an agency shall accept a complaint from an 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. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved,
the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action
or inaction regarding a specific term, condition, or privilege of employment, the claim of
harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the
conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S.
17, 23 (1993). Here, we find that the actions alleged, even if proven to be true, would not
establish that Complainant has been subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997). We note that Complainant did not elaborate on the
specifics of the alleged harassment beyond the definition of the claims in the complaint.
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We note that Complainant also alleged that he was subjected to retaliatory harassment. The
Commission has stated that adverse actions need not qualify as “ultimate employment actions”
or materially affect the terms and conditions of employment to constitute retaliation. Lindsey
v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance
Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any
adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity. Id. We do not find, however,
that the actions alleged, when taken together, would reasonably deter Complainant or others
from engaging in protected activity. As such, we determine that the Agency’s dismissal of the
complaint was appropriate.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint 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).
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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

March 14, 2013
Date