01a51845
04-20-2005
Daniel Powers, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Daniel Powers v. Department of the Navy
01A51845
April 20, 2005
.
Daniel Powers,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A51845
Agency No. DON 04-61414-084
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated December 6, 2004, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of reprisal for prior
EEO activity when:
(a.) From October 2, 2002 through January 28, 2004, while having his
weapon red-tagged, complainant was denied overtime;
(b.) Since 1997, complainant has been paid at the GS-09 level while
other majors are paid at the GS-10 level;
(c.) Complainant was not paid interest on back pay he received for a
rescinded suspension, effective May 24, 2004.
The agency dismissed claims (a.) and (b.) pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact. The agency also
dismissed claim (a.) pursuant to 29 C.F.R. � 1614.107(a)(1), on the
grounds that complainant raised the same claim in a prior complaint.
The agency further dismissed claim (c.) pursuant to 29 C.F.R. �
1614.107(a)(5) on the grounds that this claim is moot inasmuch as
complainant was paid the interest due him.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission. We find
that complainant raised a claim identical to claim (a.) in the complaint
that was decided by the Commission in Daniel Powers v. Department of
the Navy, EEOC Appeal No. 01A45427 (December 21, 2004). We therefore
find the agency properly dismissed claim (a.).
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
We find that complainant should reasonably have suspected discrimination
in connection with his pay at the GS-9 level long before his EEO contact
on August 2, 2004. We find complainant has not provided an adequate
explanation for the lapse of more than six years between the time he
claimed to have discriminatorily received level GS-9 pay and the time he
contacted an EEO Counselor. We find the agency properly dismissed claim
(b.) for untimely EEO Counselor contact.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented. We observe
that on appeal, complainant concedes that he has received an interest
payment from the agency that arrived without any explanation. We find
that interim events have eradicated the effects of
the alleged discrimination and that the alleged discrimination is
not reasonably likely to recur. Furthermore, we find that the agency
appropriately addressed complainant's request for compensatory damages.
Accordingly, we find the agency properly dismissed claim (c.).
We therefore AFFIRM the agency's dismissal of the complaint.
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
April 20, 2005
__________________
Date