Mitchell G.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionJul 13, 2016
0520150491 (E.E.O.C. Jul. 13, 2016)

0520150491

07-13-2016

Mitchell G.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Mitchell G.,1

Complainant,

v.

Ashton B. Carter,

Secretary,

Department of Defense

(Defense Commissary Agency),

Agency.

Request No. 0520150491

Appeal No. 0120151287

Agency No. DECA000352015

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120151287 (July 23, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). After reconsidering the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request.

BACKGROUND

At the times of the events giving rise to this complaint, Complainant worked as a Lead Store Associate at the Agency's facility in Randolph AFB, Texas. On January 2, 2015, Complainant filed a formal complaint which the Agency characterized as alleging that the Agency subjected him to discrimination on the bases of race (African American), sex (male), and reprisal when: (1) on March 3, 2011, his request for a desk audit of his position was not completed by the Agency's Classification Division; (2) during the on-site manpower staffing review conducted from June 24, 2011 to July 2, 2011, other employees with less Service Computation were promoted and reclassified to the GS-0303 series, and their work hours were increased from part-time to full-time status; and (3) on December 2, 2014, the store director told Complainant, in the presence of a secretary, while laughing, that "I see you got your girlfriend back."

In Complainant v. Dep't of Defense, EEOC Appeal No. 0120151287 (July 23, 2015), the Commission affirmed the Agency's dismissal of the complaint. Specifically, the decision held that pursuant to EEOC Regulation 29 C.F.R. � 1614.105(a)(1), Complainant was required to contact an EEO Counselor within 45 days of the of the effective date of the alleged discriminatory action, which took place on July 2, 2011. Complainant did not make contact with an EEO Counselor until December 5, 2014, more than 45 days after the alleged discriminatory incident. With respect to claim 3, the decision held that pursuant to 29 C.F.R. � 1614.107(a)(1) an allegation involving a single comment was insufficient to state a claim of hostile work environment harassment.

On request for reconsideration, Complainant contends that the decision to dismiss his complaint was improper because the Agency: (1) fragmented his claim; (2) failed to accurately characterize, or ignored incidents occurring within the 45 day time frame to make contact with an EEO counselor; (3) did not address the justification Complainant presented for estoppel and equitable tolling of the time limit; and (4) failed to consider the Lilly Ledbetter Fair Pay Act timelines for compensation issues.

ANALYSIS

After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. Complainant is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 � VII.A. (Aug. 5, 2015). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not met that burden in the instant Request.

Fragmented Claims & Inaccurate Characterization and Consideration of Timely Incidents

After careful review of the instant facts, we find that Complainant's fragmentation argument does not apply. According to Complainant, his un-fragmented claim is that he was discriminated against and subjected to harassment on the basis of race, sex, and reprisal when the Agency: (1) failed to reclassify his position to GS 303 series in October 2014; (2) failed to promote him in July 2015; (3) failed to comply with a negotiated settlement agreement in December 2015; (4) issued an unjustifiably low performance appraisal rating on several occasions including August 2015; (5) moved a co-worker into his work group in October 2014; (6) converted an unqualified co-worker to the GS 303 series in October 2014; (7) took his office space in April 2015; (8) sent him home for wearing shorts in July 2015; (9) changed his work schedule and duties in April 2015; and (10) hired an employee for a workgroup that was already overstaffed and later reprimanded him for the lack of productivity in his group. Upon review, we do not find that the previous decision was clearly erroneous under the asserted fragmentation theory by affirming the dismissal of claims (1) and (2). Although the Commission has long held that an agency cannot ignore the pattern aspect of a claim and define the issues in a piecemeal manner, we do not believe that situation is present in this case. See Ferguson v. Dep't of Justice, EEOC Request No. 05970792 (Mar. 30, 1999); Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994).

At the outset, we note that many of the claims that Complainant maintains comprise a hostile work environment claim did not arise until after he had already sought EEO counseling on December 5, 2014, and are therefore not mentioned in the EEO complaint at issue here. Furthermore, a fair reading of Complainant's EEO complaint and his statement on appeal indicates that his primary concern was the failure of the Agency to reclassify his position and to promote him over the years beginning in May 2011. There is no persuasive evidence that Complainant only suspected discrimination regarding this matter during the 45-day period that proceeded his December 5, 2014 EEO counselor contact.

Although Complainant points to his October 22, 2014 conversation with his supervisor and the return of a female employee to his unit as the discriminatory events that caused him to seek EEO counseling 44 days later, we are not persuaded. Complainant maintains that his October 22, 2014 conversation with his supervisor about the inability to reclassify his position was a separate discriminatory incident, and that it was the day he discovered he was being discriminated against. We find, however, that Complainant, on that date, did not learn anything new that would have caused him to only suspect discrimination at that point. Our precedent requires that an employee seek EEO counseling when they reasonably suspect discrimination, not when they obtain evidence that would supposedly support the charge. By his own admission, Complainant indicated that the information he obtained on October 22, 2014, was merely a restatement of what he had already been told over the years.

Estoppel and Tolling of Time Frames & Lilly Ledbetter Act Application

Complainant's contends that the Agency failed to address the arguments he made for estoppel and equitable tolling of the time limit. 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.

On the instant facts, we find the Agency properly dismissed Complainant's claims for untimely Counselor contact. Complainant contends that there was no reason for him to suspect discrimination until October 22, 2014, after speaking with the Store Director. During this conversation, Complainant states that he was advised that his position would not be reclassified. Complainant contends that the applicable time limits should be waived because, prior to this occasion, the Agency's actions "reassured" him that the position re-classification would occur therefore he had no reason to suspect discrimination. The circumstances described here can be best categorized as Complainant electing to go through an informal process to resolve this matter prior to initiating EEO contact. The Commission has consistently held that the pursuit of other informal methods of resolution outside the EEO process do not toll the time limitation period for contacting an EEO Counselor. See Kramer v. U.S. Postal Service, EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S. Postal Service, EEOC Request No. 05910291 (April 25, 1991). Consequently, we find that Complainant has not provided an adequate justification for extending the time limitation period for the dismissed claims.

Regarding Complainant's fourth contention that the Agency failed to consider the Lilly Ledbetter Fair Pay Act in assessing the timeliness of his claims, we find that the Act does not apply to the instant matter as this is not a "compensation case" as defined by the Act. The Ledbetter Fair Pay Act applies to all claims of discrimination involving compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act (ADEA). See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720130025 (Mar. 20, 2015). This case, as articulated by Complainant, is not a compensation case. Complainant is alleging that, unlike his female co-workers, the Agency has not reclassified his position and that he has been subjected to a hostile work environment.

Harassment

We find that the previous decision did not clearly err in affirming the Agency's dismissal of claim (3). Complainant offers no additional information in his request to persuade the Commission to find that the isolated comment at issue here was severe enough to rise to the level of unlawful harassment.

CONCLUSION

Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law, or that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency. Accordingly, the decision in EEOC Appeal No. 0120151287 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

__7/13/16________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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