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