Tommy J. Winston, Complainant,v.Lawrence M. Small, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity CommissionMay 3, 2007
0120064840 (E.E.O.C. May. 3, 2007)

0120064840

05-03-2007

Tommy J. Winston, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.


Tommy J. Winston,

Complainant,

v.

Lawrence M. Small,

Secretary,

Smithsonian Institution,

Agency.

Appeal No. 0120064840

Agency No. 0615062606

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.

At the time of the events at issue, complainant was employed by the

agency as a Facilities Management Specialist at the National Air and

Space Museum in Washington, D.C. The record indicates that a co-worker

claimed that complainant threatened her on January 13, 2006. As a result

of the complaint, complainant was reassigned from the Washington museum

to an agency facility in Maryland (the "Suitland Zone"). During e-mail

correspondence with his supervisor (Supervisor), the Supervisor indicated

that he was investigating the threat claim. On February 6, 2006, the

Supervisor e-mailed complainant and informed him that the investigation

was complete and he wanted to meet to discuss the findings. On February

7, 2006, the Supervisor issued complainant a proposal to suspend for one

calendar day for misconduct. The Supervisor found that complainant had

conducted himself in an inappropriate and unprofessional manner which was

disruptive to the work environment. Complainant responded to the proposed

suspension in writing on February 15, 2006. By memorandum dated March 27,

2006, which complainant received on April 3, 2006, the Director determined

that complainant was not malicious in his tone with the co-worker and

decided to rescind the proposed suspension. The memorandum noted that

it would not be filed in complainant's official personnel folder.

On April 27, 2006, complainant contacted the EEO Counselor. When the

matter was not resolved informally, complainant filed his formal complaint

on June 26, 2006. In his complaint, complainant alleged that he was

subjected to discrimination on the bases of race (African-American)

and color (Black) when:

1. On January 24, 2006, he was reassigned to the Suitland Zone, and

2. On February 7, 2006, he received a Proposal to Suspend which resulted

in a confirmation of counseling.

The agency dismissed claim (1) for untimely EEO Counselor contact

and claim (2) for alleging a claim regarding a proposed action.

The agency also noted that claim (2) was also untimely raised with

the EEO Counselor. This appeal followed. Complainant asserted that

although he was reassigned effective January 24, 2006, it was not final

until the agency issued its determination on the proposed suspension

dated March 27, 2006 which he received on April 3, 2006. At that time,

the proposed suspension was rejected. Therefore, complainant argues

that his contact with the EEO Counselor on April 27, 2006, was timely.

Further, complainant asserted that the events constituted a continuing

violation claim. Finally, complainant argued that he was delayed by

the actions of the Supervisor and the Director.

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,

that the agency shall dismiss a complaint that alleges that a proposal to

take a personnel action, or other preliminary step to taking a personnel

action, is discriminatory. Upon review, clearly the proposed suspension

dated February 7, 2006 was a proposed action. Therefore, we find that

the agency's dismissal of claim (2) was appropriate.

EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in �1614.105, �1614.106 and

�1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the appellant can establish that

appellant was not aware of the time limit, that appellant did not know

and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence appellant

was prevented by circumstances beyond his control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

Upon review of the record, we find that complainant has not provided

sufficient explanation for the tolling of the time period. We note that

the reassignment memorandum indicated that it was "effective January

24, 2006." While complainant may have initially had reason to believe

the reassignment might have been temporary during the investigation, the

record is clear that complainant knew the investigation was completed and

the supervisor had determined that he should be disciplined on February

7, 2006. There was no mention at this time of returning complainant

to Washington. At this point, there was no longer any reason for

complainant to believe the reassignment was temporary. Finally, we are

not persuaded by complainant's claim that he was delayed by the actions

of the Supervisor and the Director. Therefore, we find insufficient

reason to extend the time period.

We note that complainant asserted that claim (1) was part of a

continuing violation. The Supreme Court has held that a complainant

alleging a hostile work environment will not be time barred if all acts

constituting the claim are part of the same unlawful practice and at least

one act falls within the filing period. See National Railroad Passenger

Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further

held, however, that "discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely filed

charges." Id. Finally, the Court held that such untimely discrete acts

may be used as background evidence in support of a timely claim. Id.

In the case at hand, claim (1) is a discrete act. Since there is no

other timely claim, claim (1) cannot be used as background evidence.

As such, we are not persuaded by complainant's argument that claim (1) was

a continuing violation claim. As such, we affirm the agency's dismissal

of claim (1) for untimely EEO Counselor contact pursuant to 29 C.F.R. �

1614.107(a)(2).

Therefore, we AFFIRM the agency's final decision dismissing the

complaint.

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

May 3, 2007

__________________

Date

2

0120064840

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120064840