0120103689
02-17-2011
Martin T. Standel, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Martin T. Standel,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120103689
Agency No. 201023450NHTSA02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (Decision) dated September 3, 2010, 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race (Caucasian), sex (male), color (Not
Specified), disability (Diabetes), age (64 years at time of incidents),
and reprisal for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. On July 14, 2010, Complainant was informed that the Agency was
considering a personnel action against him regarding a $5,000 allotment
Complainant executed;
2. During April 2010, Complainant's budget analysis responsibilities
were removed and he was reassigned to the program evaluation. performance
and internal control division;
3. On March 24, 2010, Complainant received a Memorandum of Caution; and
4. Between January 21 and March 2010, Complainant was subjected to
hostile work environment harassment.
The Agency dismissed claim 1 for failure to state a claim, finding that
Complainant was not aggrieved. The Agency dismissed the remaining
claims for untimely EEO Counselor contact. On appeal, Complainant
maintains that on January 21, 2010 he met with a Management Official
(MO) who told Complainant that she would contact the Human Resources
Department on his behalf but subsequently failed to do so. The Agency
made no comment on appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) states that an agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action is discriminatory. Because claim 1 addresses a proposed action
we find that the Agency correctly dismissed the claim.
With regard to the remaining claims, we note that � 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 shows that, with regard to claims 2, 3,
and 4, the most recent alleged discriminatory act occurred in April 2010
(date unspecified) but that Complainant did not contact an EEO Counselor
until July 14, 2010, which is beyond the 45-day regulatory limit.
Complainant maintains that he met with MO on January 21, 2010 and she
told him she would contact the Human Resources Department on his behalf
but subsequently failed to do so. We note, however, that a complainant
is at all times responsible for proceeding with the complaint whether or
not the complainant has a representative or someone acting on his behalf.
See 29 C.F.R. � 1614.605(e). We find that Complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Therefore, following a
review of the record, we AFFIRM the Agency's 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
February 17, 2011
__________________
Date
2
01-2010-3689
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103689