0120100734
07-30-2012
Johnny B. Coppett, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Johnny B. Coppett,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120100734
Agency No. 2010007
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 9, 2009, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow, the Agency's final decision is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nuclear Electrician Technician (Level II Tech) at the Agency's Brown's Ferry Nuclear Plant in Alabama. On October September 24, 2010, Complainant initiated EEO counseling, and on October 30, 2009, filed a formal complaint in which he alleged that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), disability, and in reprisal for prior protected EEO activity when:
1. On or about May 29, 2009, through August 20, 2009, the Agency placed Complainant in non-work, non-pay status (suspended); and
2. On or about May 15, 2009, Complainant learned that an African-American co-worker with medical constraints was not demoted to Level II Craftsman, as Complainant was.
In its final decision, the Agency dismissed Complainant's complaint on the basis that it was initiated by untimely EEO counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly dismissed his complaint. Complainant argues that he initiated EEO activity when he attempted to file a grievance on or about May 18, 2009, after he learned that an African-American co-worker with medical constraints had not been demoted. Complainant further contends that when he was suspended on or about May 29, 2009, his security clearance was revoked. He contends that he was therefore unable to enter Agency facilities and meet with an EEO counselor and had no access to Agency websites until August 24, 2009. Complainant also maintains that he was unable to pursue his union grievance or file an EEO complaint while he was suspended and without a security clearance; therefore, the time limits should be waived. Complainant further contends that he did not learn that his suspension was based on reprisal for his May 2009 grievance until he returned to work with a reinstated security clearance on August 24, 2009. The Agency maintains that it properly dismissed Complainant's complaint and asserts that Complainant was well-versed in the EEO process because he previously filed a pending complaint and had numerous telephone numbers that he could contact to initiate the EEO process.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The Commission had adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Ball v. U. S. Postal Serv., EEOC Request No. 05880247 (July 6, 1989). Thus, the limitations period is not triggered until a complainant should have reasonably suspected discrimination, but before all the facts that would have supported a charge of discrimination had become apparent.
In this case, the events in Complainant's complaint occurred in May 2009, but Complainant did not initiate EEO counselor contact until September 24, 2009, well beyond the 45-day time limit. Complainant maintains that on or about May 18, 2009, he attempted to file a grievance that alleged that he was subjected to disparate treatment when he was demoted. However, filing a grievance does not constitute the initiation of EEO counselor contact. 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. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Moreover, Complainant's admission that he tried to file a grievance because of disparate treatment in May 2009 indicates that Complainant should have acquired reasonable suspicion of discrimination for this matter at least by May 2009.
Complainant maintains that he did not learn of a discriminatory motive for his suspension until he returned to work on August 24, 2009, when an Electrical Department Manager informed him of retaliatory motives for his suspension. We are not persuaded by Complainant's argument on appeal. We note that 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. U.S. Postal Serv., EEOC Request No. 05900065 (Mar. 29, 1990). We find that Complainant should have acquired reasonable suspicion regarding his suspension when he was suspended in May 2009
Complainant also maintains that he was unable to initiate EEO timely counselor contact because his security clearance was revoked and he could not enter Agency facilities until August 24, 2009. We note that, on appeal, Complainant acknowledges that he has filed a prior EEO complaint and was aware of EEO time limits. As such, Complainant should have been aware of his ability to contact EEO officials via telephone, mail, or electronic mail. Finally, Complainant contends that his demotion led to him being paid less than other employees, and therefore, claim 2 should be construed as an ongoing pay discrimination claim. However, the record reveals that the gravamen of Complainant's complaint is that the Agency subjected him to discrimination when it demoted him, not a pay discrimination claim. Moreover, the merits of Complainant's pay discrimination claim are being adjudicated in a separate complaint that is currently on appeal with the Commission.1 Consequently, we find that Complainant failed to present any argument warranting a waiver or extension of the applicable time limit. Therefore, we find that the Agency properly dismissed Complainant's complaint on the basis that it was initiated by untimely EEO counselor contact.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency's final decision for the reasons set forth in this decision.
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
July 30, 2012
Date
1 Coppett v. Tennessee Valley Authority, EEOC Appeal No. 0120113605 (pending). The accepted issue in that pending appeal is whether Complainant established that he was subjected to unlawful discrimination based on race, color, sex, disability, and reprisal when, on or about March 28, 2010, he discovered that he was being paid less than a female co-worker.
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0120100734
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100734