0120152451
02-23-2017
Rudy R.,1 Complainant, v. Philip A. Miscimarra, Acting Chairman, National Labor Relations Board, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rudy R.,1
Complainant,
v.
Philip A. Miscimarra,
Acting Chairman,
National Labor Relations Board,
Agency.
Appeal No. 0120152451
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 9, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and 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 a former Field Attorney with the Agency's office in Birmingham, Alabama.
Complainant was terminated from his position by the Agency effective September 24, 2013. Complainant appealed to the Merit Systems Protection Board (MSPB), which sustained the removal. MSPB Docket No. AT-0752-14-0621-I-2. Among other things, the MSPB considered Complainant's claims of discrimination and retaliation in connection with his removal and determined the evidence did not support these claims.
On June 16, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color, national origin (not specified), sex (male), religion, disability, age (48), and/or reprisal for prior protected EEO activity when:
1. He was not retained or rehired as a Field Attorney.
2. He was not interviewed for Agency positions.
3. Posted vacancy announcements were either rescinded or cancelled.
4. He was not promoted to supervisory positions.
5. The Agency created and implemented discriminatory hiring practices.
6. The Agency created new work rules and onerous working conditions.
7. He was not provided with performance or time-off awards
8. He was issued unfavorable performance appraisals.
9. He was denied work-related training.
10. He was negligently supervised.
11. Agency management engaged in harassment that created a hostile work environment.
12. The Agency issued a flawed, incomplete and discriminatory Inspector General investigation into allegations of poor work performance by Complainant.2
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to bring the matter to the attention of an EEO Counselor. The Agency noted that Complainant did not seek EEO Counseling and filed a 16-page complaint on June 16, 2015, directly to the EEO Director. Based on Complainant's failure to comply with the regulations, the Agency dismissed the complaint as a whole.
Complainant appealed. On appeal, Complainant and his attorney indicated that he directly filed a complaint with the Agency raising several issues of concern that occurred since his removal from the Agency in 2013. Complainant argued that the Agency failed to investigate the claims and provided no appropriate rational for dismissing the complaint absent an investigation into the merits of his complaint. Complainant noted that he had previously engaged in prior EEO activity and that since he "is no longer employed by the Agency he is not required to make contact directly with an EEO Counselor to properly initiate his claims." Further, he asserted that, if he is required to notify the EEO Counselor, he did so in a timely manner.
The Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Ser., EEOC Request No. 05891068 (March 8, 1990).
The Commission has stated that the EEO process begins when a person who believes he or she has been aggrieved meets with an EEO Counselor. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 2-1 (Aug. 5, 2015). In the case at hand, Complainant admitted that he did not contact the EEO Counselor. He also erroneously stated that he is not required to do so as a former employee. We note that Complainant provides no support for his statement and that this argument is contrary to our regulations. As such, we find that the Agency's dismissal was appropriate.
Moreover, we note that in its dismissal decision, the Agency offered Complainant the opportunity to obtain EEO counseling on these matters (with an initial contact date of June 16, 2015), which would have allowed him to refile his formal complaint following the completion of counseling. However, Complainant failed to do so.
Finally, we find that even if we were to consider the filing of the June 16, 2015 complaint as a request for EEO counseling, Complainant's claims were untimely raised or he had already elected to raise them in another forum. As already noted, Complainant was removed from Agency employment in September 2013. Therefore, all his claims relating to events that occurred during his employment (claims 2-12) were raised by him well beyond the 45-day limitation period required by 29 C.F.R. � 1614.107(a)(2). In addition, that portion of claim 1 concerning his 2013 removal was also untimely raised, as well as already adjudicated by the MSPB. With respect to the remainder of claim 1, Complainant has not provided any information to the Agency or on appeal concerning a time period where he was specifically denied rehiring.
CONCLUSION
Based on a thorough review of the record and contentions on appeal including those not specifically addressed herein, we AFFIRM the Agency's dismissal of Complainant's complaint.
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 tends 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 23, 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.
2 We note that, in his brief submitted on appeal, Complainant agreed with this characterization of the claims in his complaint.
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