01a53021
07-26-2005
Paul Schaffer, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Paul Schaffer v. Department of Homeland Security
01A53021
July 26, 2005
.
Paul Schaffer,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A53021
Agency No. HS-05-0034
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 15, 2005, dismissing his formal 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.
On June 9, 2004, complainant, an employee of the agency's Federal
Law Enforcement Training Center (FLETC) initiated contact with an EEO
Counselor.<1> Informal efforts to resolve his concerns were unsuccessful.
On September 1, 2004, complainant filed the instant formal complaint.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination in reprisal for prior protected activity.
On February 15, 2005, the agency issued a final decision. Therein,
the agency found that complainant's formal complaint was comprised of
nine claims, that were identified in the following fashion:
On July 8, 2004, complainant was informed that she was being transferred
from the Driver and Marine Division (DMD) to the Firearms Training
Division (FAD) effective July 10, 2004;
In June 2004, complainant was not given an opportunity to apply for
the position of Liaison Office with the military in Orlando, Florida,
although the duties of such position are within his position description;
In January 2004, complainant was excluded from the development and design
of a new training facility (range) skid pad, although less qualified
staff members were tasked with this responsibility;
In August 2002, complainant's request for a lateral transfer to a
Cheltenham, Maryland facility was denied;
During a six-day training session in November 2001, division staff who
are lower-graded and less experienced were designated to serve as acting
Division Chief in non-compliance with complainant's job description,
which states that complainant is to be the designee;
In November 2001, complainant was passed over and not selected for the
position of DMD Chief, and the selectee then assigned complainant's
major duties and responsibilities to other staff members;
In March 2001, staff members who were either not qualified or less
qualified than complainant were included in the design process while
complainant was excluded;
In 2001, 2002, and 2003, management permanently lost three work-related
publication manuscripts that complainant had written and the approval
requests which accompanied them; and
9. Complainant was subjected to reassignment, excluded from training
sessions, changes to job description without knowledge or
consent and revocation of major duties and responsibilities
from 1999-2001.
The agency dismissed the complaint in its entirety. Specifically the
agency dismissed claims (1) and (4) pursuant to 29 C.F.R. �1614.107(a)(4),
on the grounds that complainant addressed these matter in a grievance
process that permits discrimination claims, prior to filing the instant
complaint.
The agency dismissed claims (2) - (9) on the grounds of untimely EEO
Counselor contact.
The agency further construed all the incidents as part of a harassment
claim and found that complainant failed to state an actionable claim of
a hostile work environment.
Claim (1)
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
The record reflects that complainant filed a grievance on the same
matter that is addressed in claim (1). However the record does not
contain a grievance agreement stating specifically that grievants
may pursue discrimination claims in the agency's grievance process.
Instead, the record only contains the cover page of the pertinent
collective bargaining agreement.<2> The Commission recognizes that
in its final decision, the agency quoted directly to the portion of
the collective bargaining agreement that purportedly indicates that an
employee may raise a matter covered under the EEO regulations under the
appropriate statutory procedures, or the negotiated grievance process,
but not both. However, as noted above, the pertinent portion of
the collective bargaining agreement itself is absent from the record,
despite the agency's explicit identification of it in its final decision.
Clearly, it is the burden of the agency to have evidence or proof in
support of its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991).
Moreover, the Commission determines that the agency improperly dismissed
claim (1) for failure to state a claim. Complainant's claim that he
was improperly transferred addresses a personal loss or harm regarding a
term, privilege, or condition of his employment. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The agency's decision to dismiss claim (1) is REVERSED. Claim (1) is
REMANDED to the agency for further processing in accordance with the
ORDER below.
Claim (2) - (9)
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.
Complainant initiated EEO Counselor contact in June 2004, which was more
than forty-five days after the date of any of the alleged discriminatory
incidents identified in claims (2) - (9). Complainant failed to present
adequate justification pursuant to 29 C.F.R. �1614.105(a)(2), for
extending the limitation period beyond forty-five days. Accordingly,
the agency's decision to dismiss claims (2) - (9) on the grounds of
failure to initiate contact with an EEO Counselor in a timely fashion
was proper and is AFFIRMED.
Because we affirm the agency's dismissal of claims (2) - (9) for the
reason stated herein, we find it unnecessary to address alternative
dismissal grounds.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim (1)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 26, 2005
__________________
Date
1The Federal Law Enforcement Training Center,
previously a component of the Department of the Treasury, is now a
component of the agency's Border and Transportation Security Directorate.
2The Commission notes that the cover sheet for the collective
bargaining agreement indicates that it is an agreement between the
American Federation of Government Employees and the FLETC when it was
a component of the Department of Treasury. The agency, however, is not
listed therein.