0120102204
09-29-2010
Gene E. Carter, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Gene E. Carter,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120102204
Agency No. 10-67004-00335
DECISION
On April 30, 2010, Complainant filed an appeal from the Agency's final decision dated March 29, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the final decision.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's EEO complaint.
BACKGROUND
Complainant was employed as an Electrical Equipment Worker (WG-2854-7) at the Agency's Marine Corps Logistics Command (Command) in Albany, Georgia at the time of events giving rise to this complaint. On November 11, 2009, he filed a complaint in which he alleged discrimination on the bases of race (Asian/Pacific Islander), color (tan/brown), national origin (Pacific Islander/Hawaiian) and reprisal for prior EEO activity when: (1) he was suspended without pay two times for being listed as AWOL; (2) he was suspended without pay for a non-egregious act, falsely accused of sleeping and engaging in an argument; (3) he was suspended without pay for the first time offense of operating a 988 vehicle without a license and damaging a movement section attachment tool that was known to break frequently; (4) he was treated differently from other co-workers and supervisors; (5) he was retaliated against when management took adverse actions against him for engaging in protected activity; (6) he was discriminated against in regard to hiring, promotions, transfers, the work environment, discipline, discharge, wages, benefits and other terms or benefits of employment; (7) he was retaliated against for reporting harassment in February 2005 via an email to an Agency official; (8) the Agency did not take appropriate steps to prevent and correct unlawful harassment; (9) he was not afforded the opportunity to be free from retaliation for opposing discrimination; (10) he was fired, harassed and retaliated against for filing a charge of discrimination or opposing discriminatory practices; (11) he was singled out again and harassed on or about August 10, 2007 prior to his forced and wrongful resignation on August 16, 2007, which subsequently led him to seek medical assistance; (12) he was subjected to intolerable work conditions which resulted in his wrongful resignation on August 16, 2007; (13) he was punished harsher than his co-workers and supervisors who committed the same or similar acts; (14) management engaged in selective enforcement when applying punishment and remedy actions towards him; (15) management displayed favoritism and afforded double standards and leniency towards those subordinates involved in or part of the "good ole boy hunting club," or related to one another (nepotism); (16) in 2009 and on February 18, 2010, Agency management officials were untruthful to government personnel about why he was banned from the Command base; (17) when he was not selected for the position of Tractor Operator on or about December 22, 2006; (18) management officials provided false and fabricated statements against him; (19) management coerced a co-worker into giving a false statement; and (20) he was not selected for six positions between January 23, 2010, and February 8, 2010, which he learned about on February 7, 2010.1
The Agency dismissed claims (1) - (15) and (18) - (19) on the grounds that they either stated that same claim that had been decided by the Agency or the Commission or were untimely. The Agency found that those claims which occurred from 2005 through Complainant's resignation, in August 2007, were untimely. The Agency rejected Complainant's contention that he only became aware that he could file a formal complaint when he was provided documentation by the United States Attorney in his civil action. The Agency noted that, in the past, Complainant had filed three formal complaints and two informal complaints. The Agency dismissed claim (16) for failure to state a claim upon concluding that Complainant did not allege any harm or injury for which there is a remedy. Claim (17) was dismissed for untimely EEO counselor contact. The Agency dismissed three of the non-selections contained in claim (20) on the grounds that they failed to state a claim while the remaining three were dismissed for untimely EEO contact. Complainant filed this appeal.
ANALYSIS AND FINDINGS
Claims (1) - (15) and (18) - (19)
At the outset, we find that the Agency did not clearly indicate which claims were being dismissed for stating the same claim that had already been decided by the Agency or the Commission and which claims were being dismissed for untimely counselor contact. In this regard, we note that with respect to those claims that were dismissed pursuant to 29 C.F.R. � 1614.107 (a)(1) for stating the same claim that had already been decided, the Agency merely referenced an enclosure that provided a very vague and cursory summary of Complainant's five formal and informal complaints. We find no persuasive evidence that would allow us to find that the claims in the instant complaint are identical to those raised in Complainant's prior complaints as reflected by the Agency's enclosure nor, as indicated above, can we discern which claims were dismissed for this reason. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the Agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Accordingly, because the Agency has not provided sufficient or persuasive evidence to support its dismissal of claims (1) - (15) and (18) - (19), we are REVERSING the Agency's decision and REMANDING these claims for processing in accordance with the Order below.
Failure to State a Claim (Claim (16))
EEOC Regulation 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. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that 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, � 1614.106(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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In claim (16), Complainant states that he was discriminated against when Agency officials allegedly gave government employees false information as to why he was no longer allowed on the Command base. Upon review, the Commission finds that the Agency properly dismissed claim (16). Complainant failed to show that he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. We note that not every work-related issue constitutes a term, condition, or privilege of employment. We further find, with respect to Complainant's reprisal claim, he failed to establish that the Agency's actions, even if true, would dissuade a reasonable employee from making or supporting a charge of discrimination. The dismissal of claim (16) is AFFIRMED.
Regarding claim (20), the Agency dismissed three of Complainant's non-selection allegations on the grounds that he failed to state a claim upon concluding that the Human Resources Services Center - Southeast (HRSC-SE) did not refer Complainant's application to the Command. The record shows that these non-selections were: Supervisory Program Management Specialist (Certificate No. SE9-YC0301-02-MR372920-I); Supervisory Logistics Management Specialist (Certificate No. SE9-YC0346-03-MR506624-IN); and Inventory Management Specialist (SE9-GS2010-O5-MR522216-IN).
The Agency's dismissal relies on that portion of our regulations which requires employees to file their complaints with the Agency that allegedly discriminated against them. 29 C.F. R. � 1614.106(a), 107(a)(1). The Agency's argument appears to be that Complainant should have filed his claim against the HRSC-SE, not the Command. We are not persuaded by the Agency's argument. Complainant's complaint is against the Agency itself, not a particular sub-component such as the HRSC-SE or the Command. Therefore, we find that Complainant filed his complaint against the appropriate Agency; and that these non-selections should not have been dismissed for failure to state a claim. Accordingly, we find that the Agency erroneously dismissed those portions of claim (20) that it found failed to state a claim. We REVERSE the Agency and REMAND these matters for processing in accordance with the Order below.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides for the dismissal of complaints where the Complainant did not initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 45-day time limit 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. McLouglin v. Department of the Treasury, EEOC Request No. 05A01093 (April 24, 2003).
The Agency dismissed claim (17) and the remaining portions of claim (20) for untimely EEO counselor contact. These four non-selections occurred on the following dates: December 22, 2006, April 27, 2007; July 6, 2007; and October 16, 2007. Complainant did not raise these matters before an EEO counselor until October 16, 2009, which is beyond the 45 day time limit. We are satisfied Complainant knew of the 45 day time requirement due to his previous EEO activity, and note that he did not offer a justification for tolling of the time limit. We therefore find that these allegations were appropriately dismissed. The Agency's dismissal of claim (17) and those portions of claim (20) it found to be untimely raised before an EEO counselor is AFFIRMED.
ORDER (E0610)
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 (K0610)
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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)
This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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
____9/29/10______________
Date
1 These positions are identified as Inventory Management Specialist, Supervisor Logistics Management Specialist, Information Technology Specialist, Supervisory Program Management Specialist, Heavy Mobile Equipment Mechanic, and Tractor Operator.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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