01990006
07-10-2000
Matthew E. Kieron, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Matthew E. Kieron, )
Complainant, )
)
v. ) Appeal No. 01990006
) Agency No. 98-66604-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated August 26, 1998,
dismissing complainant's complaint due to untimely EEO contact and/or
for stating the same claim that was pending before and had been decided
by the agency is proper pursuant to the regulation set forth at 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �� 1614.107(a)(1) and (2)).<1> In his complaint, dated
June 2, 1998, complainant alleged that he was subjected to harassment
and a hostile work environment which led to his constructive discharge
effective June 30, 1996.
The record indicates that complainant, previously, filed a formal
complaint on March 27, 1996, Agency No. 96-66604-007, concerning his
reassignment, relocation, performance award, a letter of requirement, and
working conditions within the agency. On December 6, 1996, the agency
dismissed the subject complaint, and complainant appealed the matter to
the Commission on January 7, 1997. On March 3, 1998, the Commission
issued its decision modifying the agency's decision. Specifically,
the Commission ordered the agency to provide complainant with EEO
counseling with regard to his constructive discharge which was raised
for the first time on appeal. The record indicates that in accordance
with the Commission's order, complainant was provided with EEO counseling
with regard to his constructive discharge claim on March 30, 1998.
The record also indicates that complainant, previously, filed another
formal complaint on July 8, 1996, Agency No. 96-66604-010, concerning
his leave requests, mid-year performance review, and working conditions
during his employment at the agency. The record indicates that these
matters are pending before an EEOC Administrative Judge.
The agency stated, in the instant decision, that complainant's claim
concerning harassment involved the same matters that were raised in his
previous complaints, discussed above. It is noted that complainant did
not identify any specific incidents of harassment in his formal complaint.
According to the EEO Counselor's Report, it appears that the alleged
harassment involved the same matters that were raised in the previous
complaints, i.e., concerning his reassignment, relocation, performance
award, a letter of requirement, mid-year performance review, leave
requests, and working conditions during his employment at the agency.
Furthermore, on appeal, complainant does not dispute the agency's
contentions on this matter. Thus, the Commission finds that the agency's
dismissal of the alleged harassment for stating the same claim as a
prior complaint is proper.
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.
With regard to complainant's constructive discharge claim, the record
indicates that complainant accepted the separation incentive pay
and retired effective June 30, 1996. The record also indicates that
complainant raised the alleged claim for the first time in his previous
appeal on January 7, 1997, which was beyond the 45-day time limit.
On appeal, complainant notes that he raised the subject claim on or
after July 26, 1996, during an agency's investigation of the previous
complaint, Agency No. 96-66604-007. However, there is no evidence in
the record that complainant asked the agency to amend his previous
complaint to include this matter nor is there any evidence in the
record that he contested such on his previous appeal. It appears that
complainant merely raised the matter as background information for the
subject complaint, rather than a live issue. Furthermore, the record
indicates that complainant filed Agency No. 96-66604-010 on July 8, 1996,
8 days after the alleged constructive discharge of June 30, 1996, but he
did not include the constructive discharge claim therein. Based on the
foregoing, the Commission finds that complainant did not intend to pursue
an EEO complaint with regard to his constructive discharge claim until,
at the earliest, on or around January 7, 1997, when he raised the subject
matter to the Commission for the first time. Thus, the Commission finds
that complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor
with regard to his constructive discharge claim.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 10, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.