0120072823
01-27-2010
Emmanuel V. DeVera, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Emmanuel V. DeVera,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120072823
Agency No. 07COFTSED1
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 30, 2007, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), and the Age Discrimination in Employment Act
(ADEA).
Complainant filed a complaint alleging that he was subjected to
discrimination on the bases of race (Philippine/Asian-American), national
origin (Philippine/Asian-American), color (not specified), age (over
40), and in reprisal for prior protected EEO activity (in June 2005)
under when:
1. He was not selected for various positions from 2001 and 2006;1
2. He was given "meaningless" assignments from 2001 to 2006;2
3. He was not given performance awards for 3 years from 2003 through 2005;
and
4. He was given an inappropriate performance appraisal on November 6,
2006.
The agency dismissed claims 1 and 4 for failure to initiate timely EEO
Counselor contact. The agency noted that complainant did not initiate EEO
Counselor contact with regard to issues 1 and 4, until December 26, 2006,
which it argues was beyond the applicable forty-five day time frame.
The agency dismissed claims 2 and 3 for failure to state a claim,
reasoning that complainant did not allege any harm to his employment
status.
On appeal, with respect to claim 4, complainant contends that he contacted
Person A within 45 days of signing the appraisal, but that she could
not meet with him at that time. Complainant also states that he did not
receive a copy of the appraisal until one or two weeks later. He also
argues that the remaining claims were dismissed improperly because they
were timely, stated claims of harm to his employment, and demonstrated
a pattern of discrimination and reprisal.
ISSUES
1. Did the agency properly dismiss claims 1 and 4 for untimely counselor
contact?
2. Did the agency properly dismiss claims 2 and 3 for failure to state
a claim?
DISCUSSION
With regard to issue 1, we agree with the agency that complainant's
non-selections were discreet acts that occurred more than 45 days
before he contacted the EEO Counselor. Hence, they are timed-barred and
complainant is precluded from pursuing them as distinct claims. See 29
C.F.R. �1614.107(a)(2). On appeal, complainant has provided no persuasive
arguments or evidence for warranting an extension of the time limit for
initiating EEO Counselor contact.
Regarding the agency's alleged failure to assign complainant meaningful
work and to give him performance awards (claims 2 and 3, respectively),
we find that the agency improperly dismissed these allegations pursuant
to 29 C.F.R. �1614.107(a)(1). We find that performance awards and
assignments that lead to promotional opportunities are benefits of
employment, the withholding of which may cause employees to be aggrieved.
Because the complainant claimed that he was denied performance awards and
meaningful assignments for reasons prohibited by Title VII and the ADEA,
he has stated cognizable claims.
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.
With regard to issue 4, we find that the agency improperly dismissed this
issue for untimely EEO Counselor contact. Although complainant signed his
performance appraisal on November 6, 2006, we note that he did not receive
a copy of the appraisal at this time. Complainant states, and the agency
does not dispute, that he did not receive a copy of the appraisal until a
week or two after he signed it. We find complainant did not reasonably
suspect discrimination until he received a copy of the appraisal which
was at the earliest one week after he signed the appraisal. Accordingly,
we find complainant's December 26, 2006 counselor contact was timely.
CONCLUSION
The Commission AFFIRMS the dismissal of issue 1 and REVERSES the dismissal
of issues 2, 3 and 4.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
January 27, 2010
__________________
Date
1 The agency's dismissal letter states that complainant alleged
discrimination by non-selection during the period January to November
2004, but it notes that the positions complainant applied for occurred
between June 30, 2000 and April 6, 2006.
2 Complainant incorporated the EEO Counselor's Report by reference in
the complaint. Although the report states that he claimed to have been
assigned meaningless work between 2001 and 2003, it also indicates that
he cited assignments he worked on in 2006.
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0120072823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072823