01A41485_r
07-20-2004
John T. Miller, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
John T. Miller v. Department of the Air Force
01A41485
July 20, 2004
.
John T. Miller,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A41485
Agency No. 5B0M0202L04
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated November 25, 2003<1>, dismissing his complaints 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. In his
complaints, complainant alleged that he was subjected to discrimination
on the bases of race, color, and reprisal for prior EEO activity, when:
1. On May 14, 2002, complainant was not selected for the position of
Operations Support Officer, GS-0301-13.
On June 4, 2002, complainant was told he would be fired if he interfered
with a Military Equal Opportunity investigation.
In June 2002, White employees under complainant's supervision received
pre-complaint counseling from Air Force Reserve Command, while complainant
had received counseling from local EEO counselors regarding his prior
complaint.
Between May 14, 2002 and August 28, 2002, S1 gave S2 negative information
about complainant.
Beginning on August 28, 2002, S2 issued a memorandum regarding "Duty
Assignment Changes" which required S2 to monitor complainant's supervisory
duties.
6. On April 30, 2003, complainant received a performance appraisal
with ratings of "Above Fully Successful" and better, but complainant
did not receive a performance award.<2>
In its decision, the agency dismissed claims (1), (2), and (3), pursuant
to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
The agency also dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(8)
on the grounds that this claim alleges dissatisfaction with the processing
of complainant's prior complaint, agency case number 5BOM2001. The agency
further dismissed claims all claims pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely filing of the formal complaints.
Untimely EEO Counselor Contact - Claims 1, 2, and 3
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.
The agency found that complainant first sought EEO counseling regarding
claims (1), (2), and (3) on October 9, 2002, which is beyond the 45-day
time limit for initial EEO Counselor contact.
On appeal, complainant states that he consulted with the EEO counselor on
several occasions in May 2002 (regarding complainant's 2002 performance
appraisal<3>) and that the EEO Counselor tried to discuss complainant's
related concerns with agency management during informal pre-complaint
counseling between June and September 2002 without success. Thereafter,
complainant states he filed his formal complaint on October 9, 2002.
On appeal, the agency submits two similar affidavits, dated November 18,
2003 and February 24, 2004, from the EEO Counselor each of which contains
an account of the procedural history of complainant's instant complaints.
In the affidavit dated February 24, 2004, the Counselor states that
complainant first contacted him on October 9, 2002 regarding the events
described in claims (1) - (5). We therefore find dismissal of claims (1)
- (3), pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor
contact is proper.
Untimely Complaint - Claim 6
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.
The agency determined that complainant received the notice regarding
his right to file a formal complaint on August 28, 2003 (agency number
5B0M0303). In support, the agency relies on an affidavit of the EEO
Counselor which states that the notice was hand delivered to complainant.
Complainant denies ever receiving the notice on the date stated by
the EEO Counselor. The agency states that the complaint was filed on
November 1, 2003.
The Commission finds that the evidence is insufficient to show that
complainant received the notice of the right to file a complaint on August
28, 2003, or more than 15 days prior to the filing of his complaint.
The agency failed to specifically identify any document in the record
showing receipt of the notice on August 28, 2003. Therefore, we can
not find that the complaint was untimely filed.
Failure to State a Claim - Claims 4 and 5
The 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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or 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,
.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).
We find claims (4) and (5) fail to state a claim in that complainant has
failed to show how he suffered any injury as a result of the alleged
discriminatory actions. Complainant has not alleged that he suffered
any lost wages, was denied any privilege or was otherwise harmed by
the events described in claims (4) and (5). Further, when viewed in
the context of complainant's other claims, we find claims (4) and (5)
fail to state an overall claim of harassment. We therefore find claims
(4) and (5) are properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
We therefore AFFIRM the agency's dismissal of claims (1), (2), (3), (4),
and (5). We REVERSE the agency's dismissal of claim (6). Claim (6)
is REMANDED to the agency for further processing as directed herein.
ORDER (E0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (T0900)
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 (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
July 20, 2004
__________________
Date
1The agency's final decision fails to list
the agency docket numbers to which it pertains. However, agency case
numbers 5B0M0202, 5B0M0301, 5B0M0302 and 5B0M0303 appear in the record
submitted by the agency on appeal, associated with the instant complaints.
The agency's statement on appeal lists 5B0M0202L04 as the agency's AFCARO
Docket Number.
2We have renumbered complainant's claims for easier reference.
3We speculate from the record that complainant's prior complaint, agency
case number 5BOM2001, filed June 12, 2002, concerned his appraisal for
the rating period ending March 31, 2002.