0120083003
11-06-2008
David A. Rose, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
David A. Rose,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083003
Agency No. APHIS200700304
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 8, 2008, 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. In his
complaint, complainant alleged that he was subjected to discrimination on
the basis of reprisal for prior protected EEO activity when on November
29, 2006 his supervisor;
1. established an absolute performance standard and excluded any
supervisory element;
2. placed him on leave restriction;
3. administered the time and attendance program inconsistent with and
contradictory to APHIS regulations; and
4. forced him to accept leave audits that were inequitable and punitive.
In its final decision, the agency found that claims 1, 2 and 4 were
untimely filed. Consequently, the agency dismissed claims 1, 2 and 4 in
accordance with EEOC regulation 29 C.F.R. � 1614.107(a)(2). While the
agency's final decision and the report of the EEO Counselor list November
29, 2006 as the date of the alleged discriminatory events, the record
indicates that that the performance standards complainant complained of
in claim (1) went into effect in June 2006; rendering complainant's EEO
contact on January 12, 2007 untimely. The record further reflects that
complainant was placed on leave restriction; claim (2), on September 21,
2006 and became subject to an audit of his leave; claim (4) in 2005.
As such, the agency found complainant's contact of an EEO Counselor
untimely.
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.
The record discloses that the alleged discriminatory events in claims
(1), (2) and (4) occurred in June and September of 2006 and in 2005, but
complainant did not initiate contact with an EEO Counselor until January
12, 2007, which is beyond the forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact with respect to claims (1), (2) and (4).
We note that in his appeal to the Commission, complainant states that the
agency's final decision failed to address the core issue in his complaint;
hostile work environment. In claim (3), complainant alleges that the
agency administered the time and attendance program inconsistent with and
contradictory to agency regulations, in reprisal for his prior protected
EEO activity, which he alleges created a hostile work environment. In
support of this contention, complainant claims that the agency incorrectly
administered the agency's Maxi Flex Time Attendance System which allows
an employee some flexibility in attendance by combining core hours with
"glide" time and in turn subjected him to a hostile work environment.
Specifically, complainant alleges that his supervisor would not allow
him to combine sick leave, work hours and "glide" time in order to claim
a 10 hour working day. Complainant further alleges that his supervisor
limited the use of "glide" time and required him to record on his leave
slip, only those hours he was scheduled to work for a particular day.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Complainant fails to identify any specific regulation regarding time
and attendance that was inappropriately used or that was used more
favorably for a similarly situated employee. On appeal, complainant
indicates that the agency's application of the attendance system created
a hostile work environment; however, complainant has failed to provide
persuasive evidence in support of this claim. The Commission finds that
complainant has failed to demonstrate that the agency's conduct was so
severe or pervasive that it altered the conditions of his employment.
Moreover, we find that complainant has failed to establish that the
agency's articulated reasons were a pretext for discrimination.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
November 6, 2008
__________________
Date
2
0120083003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083003