Keith P. Ross, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (DDS/Elementary & Secondary Schools - Domestic Schools) Agency.

Equal Employment Opportunity CommissionMay 18, 2007
0120070939 (E.E.O.C. May. 18, 2007)

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