0120065306
02-21-2007
Steven D. Aran, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Steven D. Aran,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200653061
Agency No. ARIMAK06JUN0241
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 1, 2006, 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 color (White) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
1. In January 2006, the agency conducted an AR-15 investigation against
complainant based on information discovered during an EEO fact finding
conference in November 2005; and
2. On June 9, 2006, complainant learned that his security clearance was
suspended.
The agency dismissed claim 1 on the grounds that complainant failed
to contact an EEO Counselor in a timely manner and claim 2 for failure
to state a claim. With respect to claim 1, the agency determined that
the AR-15 investigation occurred in January 2006, but complainant did
not contact an EEO Counselor until June 15, 2006, well beyond the time
limit for timely counselor contact.
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.
On appeal, complainant contends that he did not seek counseling regarding
the AR-15 investigation until June 2006 because he feared reprisal
from the agency. Specifically, in complainant's statement on appeal,
he indicates that he saw two other employees "being retaliated against,
dismantled and humiliated" and as such, feared that the agency would
retaliate against him as well. The Commission has held that fear of
reprisal, without more, will not toll the applicable EEO time limitations.
See Croft v. Department of the Army, EEOC 05970699 (August 1, 1997).
Complainant has failed to present persuasive arguments warranting an
extension of the applicable time for initiating EEO contact regarding
claim 1. Because we affirm the agency's dismissal of this matter on
the grounds of untimely EEO counselor contact, the Commission will not
address the agency's other grounds for dismissing claim 1.
The agency dismissed claim 2 in accordance with EEOC Regulation 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. The regulation set
forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. 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 the agency because of race, color, religion, sex, national origin,
age or disabling condition 29 C.F.R. �� 1614.103, .106(a).
In the present case, we find that the agency properly dismissed
claim 2 for failure to state a claim. The Commission finds that
claim 2 fails to state a claim because the Commission is precluded
from reviewing the validity of a security clearance determination.
See Thierjung v. Department of Defense (Defense Mapping Agency), EEOC
Request No. 05880664 (November 2, 1989); see also Policy Gudiance on
the Use of National Security Exception contained in � 703(g) of Title
VII of the Civil Rights Act of 1964, as amended, EEOC Notice No. N-915
(May 1, 1989).
Accordingly, the agency's final dismissing complainant's complaint is
affirmed for the reasons set forth herein.
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
February 21, 2007
__________________
Date
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120065306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065306