0120064017
11-13-2006
Nelson Ramos, Complainant, v. Bruce R. James, Public Printer, United States Government Printing Office, Agency.
Nelson Ramos,
Complainant,
v.
Bruce R. James,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120064017
Agency No. 0603
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dismissing his formal 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.
On October 25, 2005, complainant initiated contact with an agency
EEO Office claiming that he was the victim of unlawful employment
discrimination in reprisal for prior protected EEO activity. Informal
efforts to resolve complainant's concerns were unsuccessful. On November
17, 2005, complainant filed the instant formal complaint.
On May 19, 2006, the agency issued a final decision. Therein, the
agency determined that the instant complaint was comprised of five claims,
identified as follows:
1. On October 19, 2005, [complainant's supervisor (GK)], prior to
discussing [complainant's] performance evaluation, relayed a story
about a veteran who had been demoted at the GSA; and also discussed
[complainant's] previous EEO complaint filed against the [agency],
mentioning that he would testify on [complainant's] behalf;
2. Subsequent to the above discussion, [complainant] was presented with
a "Fully Successful" performance rating which he contends is unfair and
without justification;
3. On or about August 2005, after being asked by [GK] to apply for the
Fellows Government and e-Government Program, and after he attended the
orientation, he was advised by the Acting Director (DC), that he could
not sign [complainant's] application because he did not think a named
manager (BS) would approve it;
4. Within the period of his performance rating, GK asked him at least
three times when he would retire;
5. [Complainant] has been given no new work assignments since he
transferred to GK's group and that carryover assignments from his old
group have no visibility and are stagnant projects.
The agency dismissed claims (1) and (4) for failure to state a claim.
The agency dismissed claim (2) on the grounds that complainant already
raised the matter under a negotiated grievance procedure that permits
claims of discrimination. The agency dismissed claims (3) and (5)
on the grounds of untimely EEO Counselor contact.
On appeal, complainant states that he does not challenge the agency's
dismissal regarding claims (2) and (3). Consequently, we shall not
further address claims (2) and (3).
Complainant further argues on appeal that the agency improperly dismissed
claims (1) and (4). Specifically, complainant argues because GK's
remarks reflected his intentions to retaliate against complainant.
Complainant also argues that the agency improperly dismissed claim (5)
(not given work assignments since he was transferred to GK's group), on
the grounds of untimely EEO counselor contact. Complainant identified
the date of the discriminatory action as October 1, 2005 , which
complainant asserts was the date that he was transferred to GK's group).
Complainant asserts that his initial EEO contact of October 25, 2005,
was therefore timely with regard to this claim.
In response, the agency disputes the October 2005 date that complainant
alleged that he was transferred to GK's group. The agency stated that
complainant was transferred to GK's group on October 17, 2004, rendering
complainant's October 25, 2005 EEO contact untimely.
Claims (1) and (4)
Claims (1) and (4) involve purportedly improper comments unaccompanied
by concrete agency action. The Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action are
generally not a direct and personal deprivation sufficient to render an
individual aggrieved for the purposes of Title VII. See Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. United States Postal Service, EEOC Request No. 05940695 (February
9, 1995). Complainant claimed that the alleged comments were improper.
However, there is no evidence in the record that complainant was issued
any disciplinary action as the result of the comments and/or remarks of
his manager. The Commission determines that the complainant failed to
show that he suffered a personal loss or harm with respect to a term,
condition or privilege of his employment, or that the agency actions
were of a type reasonably likely to deter complainant or others from
engaging in protected activity. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994); Lindsey v. United States
Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC
Compliance Manual, No. 915.003 (May 20, 1998). Moreover, a review of
the record reflects that the matters in question are insufficient to
support a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Claim (5)
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant claimed that since he was transferred to GK's section
("Engineering Service, Engineering Division, Engineering Branch) he has
been given no new work assignments. Complainant identified the date
he was transferred to GK's section as "October 1, 2005." However,
the agency submits on appeal a copy of PS Form 50 (Notification of
Personnel Action) indicating that complainant was reassigned to GK's
section ("Engineering Service, Engineering Division, Engineering Branch)
on October 17, 2004. Because the record supports a finding that the
effective date of complainant's transfer was October 17, 2004, and
because complainant claimed that he was given no new work assignment upon
transfer to GK's section, the Commission determines that complainant
should have suspected discrimination well prior to his October 25,
2005 EEO Counselor contact. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limits for initiating EEO Counselor contact.
The agency's decision dismissing claims (1) - (5) was proper and is
hereby 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 13, 2006
__________________
Date
2
0120064017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064017