0120093190
01-13-2010
Orlando Ramos Gines, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Orlando Ramos Gines,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093190
Agency No. ARCEJACK09FEB00682
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 8, 2009, 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 February 19, 2009, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On May 28, 2009, complainant filed the instant formal complaint. Therein,
complainant claimed that he was subjected to discrimination on the bases
of race, national origin, color, and in reprisal for prior protected
activity when:
a. on May 14, 2009, a comment was made during his interim NSPS evaluation
review concerning the development of trust-based relationships;1
b. on February 19, 2009, he became aware of a temporary appointment of a
"junior, non-certified project manager" to act as section/supervisor in
the Okeechobee Station, Everglades Division; and
c. on or about September 3, 2008 and December 12, 2008, he became aware
that he was not selected for interviews for the positions of Supervisory
Program Manager, YC-0340-2 and Supervisory Civil Engineer, YD-0810-2,
Jacksonville District, Everglades Division.
In its July 8, 2009 final decision, the agency dismissed claim (a)
pursuant to 29 C.F.R. � 1614.107(a)(5), finding that the interim NSPS
evaluation was a proposed action. The agency also dismissed claim
(a) on alternative grounds of failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1), finding that complainant was not aggrieved.
The agency dismissed claim (b) for failure to state a claim.
Specifically, the agency found that there was no selection action
occurring on or about February 19, 2009, denying complainant an
opportunity to act in a supervisory section chief position. The agency
noted, moreover, that on March 4, 2009, complainant accepted a temporary
management directed reassignment effective March 15, 2009.
The agency dismissed claim (c) pursuant to 29 C.F.R. � 1614.107(a)(2)
on the grounds of untimely EEO Counselor contact.
On appeal, complainant argues that in regard to claim (a), he was
retaliated against when "false, misleading" comments were added to his
interim appraisal with the intent of intimidating him and preventing
him from filing an EEO complaint. Regarding claim (b), complainant
argues that "no communications were issued asking employees for such
opportunity, nor were any other non-discriminatory, competitive-based
procedures followed for the selection for acting section chief."
Complainant argues that in regard to claim (c), his EEO Counselor contact
was timely because the agency "never communicated via email to office
employees, including the complainant, of their selection of [selectee]
to serve as acting branch chief."
Claim (a)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission determines that complainant suffered no personal loss or
harm regarding a term, condition, or employment regarding this claim.
Moreover, the alleged agency action was not of a type reasonably likely
to deter complainant or others from engaging in protected activity.
Because we affirm the agency's dismissal of claim a for the reason stated
herein, we find it unnecessary to address alternative dismissal grounds.
Claim (b)
Complainant likewise did not suffer a personal loss or harm regarding
a term, condition or privilege of his employment in connection with the
cited incident. The Commission determines that the matters at issue are
insufficient to state a claim of harassment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Moreover, the
alleged action was not of a type reasonably likely to deter complainant
or others from engaging in protected activity. Therefore, we find that
the agency properly dismissed claim (b) for failure to state a claim.
Claim (c )
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.
Claim (c) was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The alleged discriminatory events
as expressly identified by complainant in his formal complaint occurred
on September 3, 2008 and December 12, 2008. However, complainant did
not initiate contact with an EEO Counselor until February 19, 2009,
well beyond the forty-five (45)-day limitation period. 29 C.F.R. �
1614.105(a)(1). Complainant did not present persuasive argument or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. See 29 C.F.R. � 1614.604(c).
Accordingly, the agency's final decision dismissing the instant complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 13, 2010
__________________
Date
1 The record reflects that complainant was informed that he needed to
develop trust-based relations "that are essential for supervisory and
manager positions."
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0120093190
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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