0120130178
03-07-2013
Ramon Garcia, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Ramon Garcia,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130178
Agency No. 8Z0J12018
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 24, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Assistant at the Agency's Education and Training Section facility in Lackland Air Force Base, Texas. On June 6, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), religion (United Pentacostal), and color (Brown) when:
1. On March 23, 2012 Complainant was told by his supervisor (S) that he was going to be reassigned but did not tell him where he was being reassigned;
2. On or around July 2011, S gave Complainant a grade of "Unmet" on duties 2 and 3 of his midterm review; and
3. On or around March 2011 S gave Complainant a grade of "Unmet" on duties 2 and 3 of his annual appraisal.
The Agency dismissed claim 1 for failure to state a claim and claims 2 and 3 for untimely EEO Counselor contact. Specifically, the Agency noted that, with regard to claim 1, Complainant's stated claim on his Formal Complaint was unclear and that he was repeatedly asked for clarification but his responses still failed to provide sufficient clarity.
ANALYSIS AND FINDINGS
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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
In his Formal Complaint, Complainant stated his complaint was "Illegal Motivation [sic], used appraisal ratings to remove from training office. Appraised other employee with outstanding when they had leave problems disparate treatment" based on your Race (White) Color (Brown), and Religion (United-Pentecostal)." The Agency twice contacted Complainant for clarification of his complaint, asking a series of specific questions, including the date of the alleged action(s), but his responses failed to provide the requested information. We note that the claims listed in the Dismissal came from the informal complaint. Because Complainant has not provided sufficient information to determine how he was allegedly harmed we find that Complainant has failed to state a claim.
Furthermore, with regard to claim 1, we note that under 29 C.F.R. � 1614.107(a)(6) the Agency shall dismiss a complaint that alleges that a proposed action is discriminatory. Since Complainant has not indicated whether or not he has been reassigned and the wording of his claim indicates that the action is a proposed action, we find that claim should be dismissed.
With regard to claims 2 and 3, we note that � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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. The record shows that the incidents occurred in March and July 2011 but Complainant did not contact an EEO Counselor until February 29, 2012, which is beyond the applicable time limit. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 7, 2013
__________________
Date
2
0120130178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130178