01A43168
07-19-2004
Sherman Mann, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Sherman Mann v. Department of the Air Force
01A43168
July 19, 2004
.
Sherman Mann,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A43168
Agency No. 5B0M0309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 11, 2004, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of sex (male) and reprisal for prior EEO activity arising
until Title VII when:
On December 14, 2002, complainant rescheduled his January 2003 UTA and
received a threat of removal from his position;
On April 30, 2003, complainant was given a civilian appraisal that was
downgraded from the original assessment by his direct supervisor;
On April 30, 2003, complainant was the only second level supervisor in
the Mission Support Group to receive a job expectation letter; and,
On August 6, 2003, complainant received a �Letter of Counseling� based
on information provided to a supervisor by a subordinate and without
any inquiry to determine if the information provided was correct.
The agency dismissed the first three claims for untimely contact with
an EEO counselor pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
dismissed the fourth claim as moot pursuant to 29 C.F.R. � 1614.107(1)
after the Letter of Counseling was removed from complainant's personnel
file on February 27, 2004.
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.
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.
The record shows that the complainant received the removal threat on
December 14, 2002 and the downgraded appraisal ratings and job expectation
letter on April 30, 2003. Complainant did not contact an EEO counselor
until September 11, 2003, which is past the forty-five day limitation
period. Because complainant did not present any evidence to show that
the time limits should have been extended beyond the forty-five day
period, the Commission finds that the agency's dismissal of the first
three claims for untimely EEO Counselor contact was proper.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
On February 27, 2003, complainant was given a memorandum stating that
the Letter of Counseling was removed from his records and assuring
the complainant that the letter was not used as the basis for any
other disciplinary or performance actions. The removal of the Letter
of Counseling constitutes an interim event that has completely and
irrevocably eradicated the effects of the alleged discrimination.
Complainant has not shown that the incident is likely to recur. Because
the complainant has not requested compensatory damages as a remedy, the
Commission finds that the agency properly dismissed this claim as moot.
Accordingly, the agency's dismissal of the claims raised in the complaint
was proper and is AFFIRMED.
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 (S0900)
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 (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 19, 2004
__________________
Date