0120073166
09-25-2007
Jay N. Bogle, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Jay N. Bogle,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073166
Agency No. ARAMCOM06NOV04971
DECISION
Complainant timely initiated an appeal with this Commission from the final agency decision dated May 17, 2007, dismissing his formal 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 November 20, 2006, complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful.
On April 3, 2007, complainant filed the instant formal complaint. Therein, complainant claimed that he was subjected to discrimination on the bases of age and in reprisal for prior EEO activity when:
a. on April 30, 2006, the Commander of the Letterkenny Army Depot selected an identified male employee without merit promotion competition procedures to the position of Supervisory Industrial Engineer, GS-0896-12, and complainant was not considered for the position although he performed the duties as Temporary Supervisory Engineering Technician, GS-0895-12, from September 18, 2005 to March 19, 2006. Complainant stated that he believed that he was not considered for the position because management wanted a younger college age person in charge of the lean program regardless of his extensive training and experience with the lean program; and
b. on March 19, 2006, the Commander of the Letterkenny Army Depot removed him from the position of Temporary Supervisory Engineering Technician, GS-0895-12 after he did not turn in the tools or do a joint inventory of the tools from September 26, 2005 to December 6, 2005.
In its May 17, 2007 final decision, the agency dismissed complainant's formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The agency determined that complainant's initial EEO Counselor contact occurred on November 20, 2006, which it found to be beyond the 45-day limitation period. The agency further determined that complainant had or should have had reasonable suspicion of unlawful employment discrimination more than 45 days prior to November 20, 2006. The agency noted that in his formal complaint, complainant stated "in November 2006 I took the No Fear Training and it sounded to me like I had been discriminated against due to my age and being reprised against due to the previous tool incident."
Further, the agency determined that EEO posters addressing the 45-day requisite time period were on display in complainant's workplace during the relevant time. Finally, the agency determined that on September 30, 2002 and September 30, 2004, complainant attended Prevention of Sexual Harassment training wherein the 45-day time limit was discussed.
Regarding complainant's reprisal claim, the agency dismissed reprisal as a basis, finding that complainant engaged in no prior protected activity.
On appeal, complainant contends that the Letterkenny Army Depot "does post the EEO policy statement, Commanders Policy on bulletin boards and on [its] Web Page, however neither address 'reprisal' in any in-depth manner, like was discussed in the 'NO FEAR' training." Complainant further states that during training, he realized "there was such a thing as reprisal."
In response, the agency restates its argument it made in its final decision. In support of its assertions, the agency submitted a copy of the Chief of the Office Equal Employment Opportunity's affidavit confirming the existence of EEO posters on all official bulletin boards during the relevant time.
Dismissal of the Basis of Reprisal
The Commission determines that the agency correctly dismissed complainant's reprisal claim pursuant to 20 C.F.R. � 1614.107(a)(1) for failure to state a claim. We find that a review of the record reflects that complainant did not engage in any prior protected activity during the relevant time frame. Instead, complainant claimed that he was retaliated against "due to the previous tool incident." Therefore, we affirm the agency's dismissal of the reprisal basis.
Untimely EEO Counselor Contact
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 contains a copy of EEO poster outlining the requisite 45-day limitation period. The record also contains an affidavit dated August 15, 2007 from the Chief. In his affidavit, the Chief stated that "on or about August 2000 to the present we have had a poster containing information about the EEO complaint process." The Chief further stated that the posters were adequately displaced "on all official bulleting boards in all Agency shops and work areas."
The agency properly dismissed the complaint on the grounds of untimely EEO Counselor contact. The alleged discriminatory events occurred on March 19, 2006 and April 30, 2006, but that complainant did not initiate contact with an EEO Counselor until November 20, 2006 which was beyond the forty-five (45) day limitation period.
The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has "supporting facts" or "proof" of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken v. United States Postal Service, EEOC Request No. 0590065 (March 29, 1990). The Commission finds that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination at the time of the alleged discriminatory event, and that he should have contacted the EEO office within forty-five days. Complainant has failed to provide sufficient justification for extending or tolling the time limitation.
Accordingly, the agency's final decision dismissing the instant 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
September 25, 2007
__________________
Date
2
0120073166
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120073166
6
0120073166