0120101372
08-10-2012
Steven J. Magnuson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Steven J. Magnuson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120101372
Agency No. 09-62473-02542
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 17, 2009, 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. For the reasons that follow, we AFFIRM the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Analyst at the Agency's Naval Facilities Engineering Command Southwest in San Diego, California. On September 24, 2009, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) and in reprisal for prior protected EEO activity when:
1. On December 2, 2009, the Agency issued Complainant a proposed suspension; and
2. The Agency singled out Complainant and issued him detailed instruction on work assignments and filing reports, which resulted in him receiving a three-day suspension on February 19, 2009, that was effective beginning February 23, 2009.
The Agency dismissed claims 1 and 2 on the basis that they were initiated by untimely EEO Counselor contact. The Agency also alternatively dismissed claim 1 on the basis that it was a proposal to take a personnel action.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he never received an SF-50 Personnel Action form for his suspension. Complainant also maintains that the letter that informed him of his suspension led him to believe that the union was his only recourse for this matter. The Agency does not raise any argument on appeal.
ANALYSIS AND FINDINGS
Merger of Claims
The Agency dismissed claim 1 on the basis that it concerns a proposal to take a personnel action. EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that an agency shall dismiss any portion of a complaint that alleges "that a proposal to take a personnel action or other preliminary step to taking a personnel action, is discriminatory." Hopkins v. Small Business Admin., EEOC Appeal Nos. 0120092072, 0120100622 (May 3, 2011).
However, we note that the proposed seven-day suspension was effectuated as a three-day suspension effective February 23, 24, and 25, 2009. The Commission has held that where an agency proceeds on a proposed action, the action merges with the proposed action and states a claim. See Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991)). Upon the merger of claims, the specific claim regarding the proposed action is dismissed and subsumed into the claim regarding the actual action. See Taylor v. U.S. Postal Serv., EEOC Appeal 01975649 (Sept. 18, 1998). Consequently, Complainant's complaint consists of the single claim that he was subjected to unlawful discrimination when the Agency suspended him for three days in February 2009.
Untimely EEO 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 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.
In this case, Complainant was suspended February 23 through 25, 2009. The record reveals that Complainant did not initiate EEO Counselor contact until June 25, 2009, well beyond the 45-day time limit. Complainant maintains that the letter that informed him of his suspension caused him to believe that the union was his only recourse. However, while he suspension letter informed Complainant of his rights under the union agreement, it did not assert that it was the only recourse Complainant had to challenge this matter. We note that Complainant contends that he never received a SF-50 Notification of Personnel Action form. Not receiving the SF-50 does not toll the time limits for initiating EEO Counselor contact, as Complainant clearly was aware of his suspension when he served it on February 23 through 25, 2009. Complainant did not present any argument that warrants an extension or waiver of the applicable time limit. Therefore, we find that the Agency properly dismissed Complainant's complaint because it was initiated by untimely EEO Counselor contact.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency's dismissal of Complainant's complaint for the reasons set forth in this decision.
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
August 10, 2012
Date
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0120101372
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101372