0120123570
02-08-2013
Jerome W. Lacy, Sr., Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jerome W. Lacy, Sr.,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120123570
Agency No. ARINSCOM12AUG03730
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 19, 2012, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intelligence Specialist at the Agency's National Ground Intelligence Center facility in Charlottesville, Virginia.
On September 6, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity when: the Executive Director did not personally consult with him regarding the NGIC selection process over the past four years; a white co-worker was transitioned to a GG-13 position on March 25, 2012, but Complainant was not promoted to GG-13 until April 8, 2012; after he was promoted, he was not retroactively paid at the highest previous rate retroactive to June 2, 2008; and he was not informed of all of the information contained in a June 8, 2012 memorandum regarding his request for retroactive pay.
The record reflects that Complainant previously worked at a GG-13, step 6 level in Seoul, Korea. On June 2, 2008, he accepted a GG-12 position in Charlottesville, Virginia. His pay was set at GG-12, step 10. In March 2012, the Agency converted from the GG pay bands back to pay scales. On April 8, 2012 Complainant was promoted from GG-12, step 10 to GG- 13, Step 6, his previous highest grade and step. On June 5, 2012, Complainant submitted a request to the commanding officer requesting retroactive pay from June 2, 2008. On June 8, 2012, Complainant's request for retroactive pay was forwarded to a higher level command.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact as well as failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
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 event occurred on April 8, 2012, but Complainant did not initiate contact with an EEO Counselor until August 8, 2012, which is beyond the forty-five (45) day limitation period. On April 8, 2012 Complainant knew his pay was increased and by June 8, 2012 knew it was not retroactive. While he later attempted to go through the chain of command to resolve the issue, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
As we are affirming the Agency's dismissal on the grounds of untimeliness, we do not need to address the Agency's alternative ground for dismissal.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (S0610)
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 (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
February 8, 2013
__________________
Date
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0120123570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123570