0120070939
05-18-2007
Keith P. Ross, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (DDS/Elementary & Secondary Schools - Domestic Schools) Agency.
Keith P. Ross,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(DDS/Elementary & Secondary Schools - Domestic Schools)
Agency.
Appeal No. 0120070939
Agency No. PEFY06047
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 31, 2006, 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. In his
complaint, complainant alleged that he was subjected to discrimination on
the bases of race (African-American), national origin (African-American),
sex (male), color (Black), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
1. On February 23, 2006, in a memorandum for the record, [named
individual], Principal, Seoul American Elementary School (SAES) mistakenly
accused complainant of sitting in the stands next to a black person [named
individual] thought was another African American High School teacher.
2. On February 23, 2006, the SAES principal made negative remarks about
black people. Complainant further alleges that during a meeting, the
SEAS principal said "I do not care about black people;"
3. On February 24, 2006, during a meeting, the SAES principal made a
derogatory comment about the black population in America;
4. During October 2004, complainant was given a letter of reprimand
from the SAES principal for inappropriate conduct which was reduced to
a letter of caution on or about December 15, 2004;
5. On or about January 12, 2005, complainant was placed on 1 year
probation and on January 17, 2006, probation was lifted and complainant
was subjected to slandering and defamation of character from [named
individual].
6. On February 17, 2006, complainant was verbally reprimanded by [named
individual] for leaving during lunch duty;
7. On March 13, 2006, complainant was given a letter of reprimand because
he was off campus and should have been in his classroom;
8. On March 31, 2006, complainant was barred from all USFK installations;
9. On or about April 1, 2006, complainant was placed under medical
evaluation for a fitness for duty examination;
10. On May 6, 2006, complainant was issued a letter of proposed suspension
without pay for 30 days.
The agency dismissed claims 1, 2 and 3 and 6 for failure to state a
claim in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
Specifically, the agency determined that complainant failed to establish
that the agency's conduct affected a term, condition or privilege of
complainant's employment.
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).
Upon review, the Commission finds that the agency's decision dismissing
claims 1, 2, 3 and 6 for failure to state a claim was proper. Complainant
has failed to establish that he suffered any harm or adverse employment
action as a result of the agency's alleged conduct. Moreover, complainant
has failed to establish that the agency's conduct in claims 1, 2, 3
and 6 was so severe and pervasive that it altered the conditions of his
employment with the agency. Therefore, the agency's decision dismissing
claims 1, 2, 3 and 6 is affirmed.
The agency dismissed claims 4 and 5, regarding an October 2004 letter
of reprimand and 1 year probationary period effective January 12, 2006,
on the grounds that complainant pursued the matters through the agency's
negotiated grievance procedure and alternatively, the agency dismissed
claims 4 and 5 as untimely.
A review of the record indicates that complainant contacted the EEO
Counselor on March 1, 2006 concerning claims 4 and 5 which occurred
in October 2004 and January 12, 2006 respectively. 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.
Complainant does not alleged that he was unaware of the time limits
for seeking EEO counseling, nor does he indicate that he was prevented
from seeking counseling for any reason. In that regard, the Commission
affirms the agency's decision dismissing claims 4 and 5 as untimely filed
in accordance with 29 C.F.R. � 1614.107(a)(2). Because we affirm the
agency's dismissal of claims 4 and 5 as untimely, we will not address
the agency's alternative grounds for the dismissal of claims 4 and 5.
The agency dismissed claims 7, 8, 9, and 10 as moot in accordance with
29 C.F.R. � 1614.107(a)(5). In its final decision, the agency indicated
that claims 7, 8, 9 and 10 were addressed in a May 23, 2006 settlement
agreement between the parties. Upon review of the settlement agreement,
the Commission finds that claims 7 (March 13, 2006 letter of reprimand
for being off campus), 8 (barred from all USFK installations March 31,
2006) 9 (fitness for duty exam) and 10 (May 6, 2006 proposed suspension
without pay for 30 days) are addressed in the May 23, 2006 agreement
between the parties. Claims 7, 8, 9 and 10 are all part of the agency's
Notice of Proposed suspension dated May 6, 2006, which was mitigated to
a 14 suspension without pay as a result of the May 23, 2006 agreement.
Consequently, the Commission finds that the agency properly dismissed
claims 7, 8, 9 and 10 of the instant complaint and the agency's decision
in that regard is affirmed.
Based on a careful review of the record in this matter, the agency's
decision dismissing the instant complaint is hereby affirmed for the
reasons set forth herein.
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
May 18, 2007
__________________
Date
2
0120070939
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071003
6
0120070939