01994484
02-08-2001
Michael R. Spieth, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Michael R. Spieth v. Department of the Navy
01994484
February 8, 2001
.
Michael R. Spieth,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01994484
Agency No. 99-62204-015
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107. Complainant alleged
that he was discriminated against on the bases of race, color, sex,
disability, and in reprisal for EEO activity when:
On September 21, 1998, the Deputy Director attempted to deny him off
base training after the Director had approved it;
From June 1994 until May 15, 1998, he was periodically denied overtime;
and
On April 9, 1997, he received a lowered performance rating for the
period from October 1, 1995 to September 30, 1996.
The Commission finds that claim (1) is properly dismissed under 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. The record shows
that although the Deputy Director may have attempted to deny complainant
training, her attempt was unsuccessful and complainant received the
training in question. Complainant has thus failed to show that he has
suffered a harm or loss with respect to a term, condition, or privilege
of his employment because of the incident identified, and has therefore
failed to state a claim. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
We also find that the agency properly dismissed claims (2) and (3)
under 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The record indicates that the latest alleged discriminatory event
for claim (2) occurred on May 15, 1998, and that complainant became
aware of the alleged discrimination for claim (3) on April 9, 1997.
Complainant, however, did not initiate contact with an EEO Counselor
until October 14, 1998, which is beyond the forty-five day limitation
period for each claim. While complainant argues on appeal that he did
not realize he had been discriminated against in each instance until
three weeks prior to his EEO Counselor contact, the record shows that he
should have had a reasonable suspicion of discrimination on the May 15,
1998 and April 9, 1997 dates identified. See Howard v. Department of
the Navy, EEOC Request No. 05970852 (February 11, 1999). Consequently,
complainant's argument does not warrant an extension of the time limit
for initiating EEO contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 8, 2001
__________________
Date