0120093324
01-22-2010
Phillip G. Hathcock, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Phillip G. Hathcock,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120093324
Agency No. 6R0M09005
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated July 13, 2009, dismissing his 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a).
On March 10, 2009, complainant initiated EEO contact alleging that the
agency discriminated against him on the basis of reprisal for prior
protected EEO activity (assisting a coworker (C1) with her EEO complaint
between November 2007 and January 2008) when a Colonel (S1): (a) on
January 10, 2009, downgraded his Meritorious Service Medal (MSM) military
decoration; (b) in January 2008, ordered an unfounded investigation into
complainant's relationship with C1 for impropriety/adultery; and (c)
on December 17, 2008, downgraded his 2008 civilian performance rating.
Subsequently, complainant filed a formal EEO complaint reiterating (a) -
(c).
In its July 13 final decision, the agency dismissed claim (a) pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim; and claims
(b) and (c) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO
counselor contact. Specifically, the agency stated that an MSM decoration
exists in complainant's capacity as a uniformed military member and does
not fall within the EEO process. Additionally, the agency stated that
complainant initiated EEO contact regarding the actions alleged in (b)
and (c) well beyond the 45-day statutory time-frame. The instant appeal
from complainant followed.
In pertinent part, the EEOC Regulation 29 C.F.R. � 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. � 1614.105. EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of an EEO 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. Dep't 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.
In the instant matter, we agree with the agency that complainant initiated
contact with an EEO Counselor in an untimely manner and failed to provide
adequate justification to extend the time-frame. We find such to be
the case for claim (a), as well as claims (b) and (c).1
We note that complainant has argued on appeal that the time limitation
for all three claims should be extended because he had filed a complaint
on the matters with the agency's Inspector General (IG) in January
2009 and did not receive the results of that inquiry until March 2009.
He added that the time limitation for claim (c) should also be extended
because he requested reconsideration of the rating downgrade and did
not know that he had to choose between requesting reconsideration or
filing an EEO complaint. With regard to tolling the limitation period
during the pendency of complainant's IG complaint, complainant's initial
reliance on the IG to resolve his claims does not excuse an untimely
EEO Counselor contact. The Commission has consistently held that the
utilization of agency procedures, union grievances, and other remedial
processes does not toll the time limit for contacting an EEO Counselor.
See Ellis v. United States Postal Service, EEOC Appeal No. 01992093
(November 29, 2000). We further note that in his IG E-filing form,
complainant provided information that indicated he had had a suspicion of
retaliation for some time. For the same reasons, we are also unpersuaded
by complainant's further argument that the time frame for raising
his performance rating claim should be extended because he requested
reconsideration of the rating. We also discount complainant's assertion
that he did not know he had to choose between filing for reconsideration
of the rating or initiating the EEO process as the record establishes
that complainant received a written document on December 17, 2008,
entitled, "Procedures for Administrative Reconsideration," that clearly
stated that allegations that a performance rating was based on unlawful
discrimination or reprisal should be processed as an EEO complaint rather
than through the reconsideration process.
Accordingly, the agency's dismissal of the instant complaint on timeliness
grounds 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 22, 2010
__________________
Date
1 As we conclude that claim (a) should be dismissed as untimely, we find
it unnecessary to address the agency's alternate basis (failure to state
a claim) of dismissal.
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0120093324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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