01a45570
11-17-2004
Milton D. Howell, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Milton D. Howell v. Department of Agriculture
01A45570
November 17, 2004
.
Milton D. Howell,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A45570
Agency No. 030248
Hearing No. 120-2004-00231X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as an Assistant State Conservationist, GM-13, at the agency's National
Resources Conservation Service in Annapolis, Maryland.<1>
On October 22, 2002, complainant initiated EEO Counselor contact.
After informal attempts to resolve his concerns were unsuccessful,
complainant filed a formal complaint, on December 24, 2002. Therein,
complainant claimed that he was discriminated against on the bases of race
(African-American), color (black), and age (D.O.B. 6/9/43) when:
(1) the agency hired a State Administrator Officer in 2001, and a Deputy
State Conservationist in 2002, to perform the same duties he had performed
from 1994-1999.
Complainant further claimed that with respect to the 1994-1999 time frame,
he was discriminated against when the agency:
(2)(a) failed to create another GS-13 position to ease the work volume
and stress on him;
(2)(b) failed to reassign some of his duties; and
(2)(c) reassigned duties for his replacement (a white female).<2>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
Specifically, the AJ concluded that the incidents identified by
complainant in claims (1) - (2)(c) occurred beyond the 45-day time limit
for contacting an EEO Counselor. The AJ also dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness.
Furthermore, the AJ concluded that even assuming, arguendo, that
complainant timely contacted an EEO Counselor and that his formal
complaint was not rendered moot, he would not prevail on the merits
of his complaint as he failed to establish a prima facie case of race,
color or age discrimination with respect to claims (1) - (2)(c), and the
agency articulated legitimate, nondiscriminatory reasons for its action
which he failed to show were pretextual.
The agency did not issue a final decision. Because the agency did not
issue a final order within forty days of receipt of the AJ's decision,
the Commission determines that the AJ's decision is the final action of
the agency. 29 C.F.R. � 1614.109(i).
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.
The Commission finds that the alleged discriminatory events occurred
between the 1994-1999 time period, but that complainant did not initiate
contact with an EEO Counselor until October 22, 2002, which was well
beyond the forty-five (45) day limitation period. In his formal complaint,
complainant stated that his duties and supervisory responsibilities
increased tremendously during the period of 1994 to 1999. Complainant
further stated that he believed that during the relevant period �[upper
management] was working toward getting me compensated or relieved of some
of the duties.� Complainant stated that �with that belief I remained
quiet and loyal to my boss and the agency, never complaining, in hope
that something would soon change.� Complainant also stated that in 1997
�when the second new State Conservationist was assigned to the position
without competition, I was advised by top management not to make any noise
and remain silent, as they were aware of my situation.� Complainant
further stated that the realignment of duties for the new Assistant
State Conservationist ( a white female), who took over his position;
the hiring of a white female State Administrative Officer in 2001; and
the hiring of a younger black Deputy State Conservationist in September
2002, all confirmed that complainant's duties and responsibilities were
far greater than what an individual should have had to endure.
The Commission has found that since the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
during the 1994-1999 time period, and that he should have contacted
the EEO office within forty-five days of the date that the alleged
discriminatory events occurred. Complainant failed to provide sufficient
justification for extending or tolling the time limitation. Therefore,
we find that the agency properly dismissed the complaint for untimely
Counselor contact.
Because we are affirming the agency's dismissal of the complaint for
untimely Counselor contact, we find it unnecessary to address the
AJ's alternative dismissal grounds, or his alternative finding of no
discrimination.
Accordingly, the agency's final action implementing the AJ's decision
is AFFIRMED.
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
November 17, 2004
__________________
Date
1The record reveals that sometime in 2002 or
2003, complainant retired from agency employment.
2For purposes of clarity, the Commission has renumbered complainant's
claims as (1) - (2)(c).