Davis R. Rosenberg, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 11, 2003
01A32822_r (E.E.O.C. Dec. 11, 2003)

01A32822_r

12-11-2003

Davis R. Rosenberg, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Davis R. Rosenberg v. Department of the Navy

01A32822

December 11, 2003

.

Davis R. Rosenberg,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A32822

Agency No. 03-00251-008

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 27, 2003, 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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.

On October 2, 2002, complainant initiated EEO Counselor contact.

Informal efforts to resolve his concerns were unsuccessful.

In his formal complaint, filed on January 7, 2003, complainant alleged

that he was subjected to discrimination on the bases of sex (male), age

(D.O.B. 11/23/50), and in reprisal for prior EEO activity when:

1. he did not receive benefits (retention bonus and time off award)

provided to a group of other employees through a settlement agreement

dated 23 May 2000;

2. he did not receive a timely response to his Freedom of Information

Act (FOIA) request; and

3. as a result of reprisal for initiating an informal discrimination

complaint on October 2, 2002, management refused to enter into alternative

dispute resolution (ADR).

On February 23, 2003, the agency issued a decision dismissing the

complaint. Specifically, the agency dismissed claim (1) for failure

to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The agency

determined that complainant failed to demonstrate a personal loss or harm

to a term, condition or privilege of his employment because he was not

a party to the May 23, 2000, a settlement agreement between the agency,

the International Federation of Professional and Technical Employees

(IFPTE) Local 12, and a group of employees.

The agency also dismissed claim (1) pursuant to 29 C.F.R. �

1614.107(a)(2), for untimely EEO Counselor contact. The agency determined

that complainant did not contact an EEO Counselor until October 2, 2002,

and that complainant had a reasonable suspicion of discrimination more

than 45 days before initiating contact. Further, the agency alternatively

dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4), on the

grounds that complainant elected to pursue the matter in a negotiated

grievance procedure that permits claims of discrimination.

With respect to claim (2), the agency dismissed it for failure to

state a claim, finding that an employee cannot use the EEO process to

lodge a collateral attack on another proceeding; that complainant had

no prior protected activity; and that complainant failed to show how

he had suffered a personal loss or harm as a result of the agency's

alleged actions.

With respect to claim (3), the agency dismissed it for failure to state

a claim. The agency reasoned that complainant failed to allege a harm

regarding a term, condition, or privilege of his employment.

Claim (1)

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

reasonably should have suspected discrimination, but before all the

facts that would support a charge of discrimination have become apparent.

Regarding claim (1), the Commission determines that the alleged

discriminatory event occurred on January 23, 2002, but that complainant

did not contact an EEO Counselor until October 2, 2002, which is well

beyond the forty-five-day limitation period. The record contains

a copy of an EEO Counselor's Report. Therein, the EEO Counselor

indicated that complainant stated that he did not develop a reasonable

suspicion regarding claim (1) until the week of September 23, 2002,

when he and a group of Shift Test Engineers met with various agency

officials; and that complainant first realized that he was the victim

of discrimination, thereby rendering timely his October 2002 initial

EEO contact. We note, however, that the record contains a copy of

complainant's FOIA request received by the agency on January 23, 2002.

Therein, complainant requested copies of contractual agreements made

between named employees and the agency concerning group retention awards.

The Commission determines that the record supports a determination that

complainant had, or should have had, a reasonable suspicion of unlawful

employment discrimination in January 2002, more than forty-five days

prior to his October 2002 contact. Therefore, we find that the agency

properly dismissed claim (1) for untimely Counselor contact.

Because we affirm the dismissal of claim (1) for the reason stated

herein, we find it unnecessary to address the agency's alternative

dismissal grounds.

Claim (2)

The EEOC regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides,

in relevant part, that an agency shall dismiss a complaint that fails to

state a claim. The Commission has held that it does not have jurisdiction

over the processing of FOIA requests. Instead, persons having a dispute

regarding such requests should bring any appeals about the processing of

their FOIA requests under the appropriate FOIA regulations. See Gaines

v. Department of the Navy, EEOC Request No. 05970368 (June 12, 1997).

The Commission therefore determines that the agency's decision to dismiss

claim (2) was proper.

Claim (3)

Upon review, the Commission finds that the complainant fails to state a

claim. Complainant has failed to show how he was harmed with respect to

a term, condition or privilege of employment when management refused to

enter in the agency's ADR process. See Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994). Moreover, as noted

in the agency's final decision, if a complainant's concerns are not

resolved by mediation complainant has the right to address the matters

by proceeding with the EEO complaint process.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

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

December 11, 2003

__________________

Date