0120170143
02-02-2017
Ronald Grider, a/k/a Cary R,1 Complainant, v. Thomas A. Shannon, Jr., Acting Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ronald Grider, a/k/a
Cary R,1
Complainant,
v.
Thomas A. Shannon, Jr.,
Acting Secretary,
Department of State,
Agency.
Appeal No. 0120170143
Agency No. DOS028416
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated September 13, 2016, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for reinstatement to a position in the Foreign Service unspecified in the record. On August 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (54 at the time of the first incident) and reprisal based on a statute unspecified in the record when:
1. On March 16, 2012, Complainant's request for reinstatement into the Foreign Service was denied;
2. On or about November and December 2014 Department officials failed to comply with Complainant's Freedom of Information Act (FOIA) requests;
3. On October 10, 2012, Complainant's candidacy for an Information Management Specialist position was terminated; and
4. As recently as June 1, 2016, Agency officials have failed to respond to Complainant's correspondence about his findings of alleged civil rights violations.
The Agency dismissed claims 1 through 3 for untimely EEO Counselor contact and claim 4 for failure to state a claim.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 record discloses that latest alleged discriminatory acts raised in claims 1 through 3 occurred on or about December 2014, but Complainant did not initiate contact with an EEO Counselor until May 23, 2016, which is beyond the forty-five (45) day limitation period.
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. On appeal Complainant argues that the allegations referenced in claim 2 were "never mentioned in my complaint whatsoever." We note, however that in his Formal Complaint, Complainant refers to a letter he sent to the Former Agency head on November 19 2014 requesting that he respond to Complainant's FOIA request but that the Former head failed to respond. Complainant further stated that he again wrote to the Former head on December 22, 2014 and again received no response.
Complainant further argues that "most of the data that I have collected is from sluggish releases via the Freedom of Information Act and the Privacy Act." We note however, that the Commission has adopted a reasonable suspicion standard to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Appeal No. 01965648 (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, including facts obtained via FOIA and Privacy Act requests.
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact and we find that the Agency correctly dismissed claims 1 through 3 for untimely EEP Counselor contact.
With regard to claim 4, the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Following a review of the record we find that Complainant has not shown that he incurred a harm or loss from the Agency's failure to respond to his correspondence. With regard to Complainant's allegation of reprisal, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Following a review of the record we do not find that the Agency's failure to respond to Complainant's correspondence constitutes "adverse treatment" nor do we find such Agency behavior to be reasonably likely to deter Complainant or others from engaging in protected EEO activity.
Complainant argues on appeal that the FAD failed to address "new evidence discovered on May 23, 2016 [concerning] 'wide spread civil rights violations' and [that Complainant] attached a sample of the findings, an [sic] exculpatory e-mail refuting allegations made by a hiring official who sought retaliation against me." We note that the FAD did include claim 4, which addressed an alleged act of discrimination occurring on June 1, 2016. With regard to Complainant's argument about new evidence, we note that evidence may support a claim but does not itself constitute a claim. Thus to the extent Complainant's newly acquired evidence shows past widespread civil rights violations, such violations are still untimely regardless of any new evidence Complainant may present. Newly acquired evidence is not the same thing as having been subjected to an act of discrimination within the past 45 days. We note in this regard that in his Formal Complaint, Complainant refers to evidence he received on May 9, 2016 and June 1, 2016 concerning earlier alleged actions by the Agency. Significantly, however, the only specific alleged act of discrimination occurring on or around those dates is the action addressed in claim 4.
CONCLUSION
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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