0120121821
10-10-2012
Douglas L. Rader, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Douglas L. Rader,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120121821
Agency No. DC-12-0009
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 17, 2011, 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.
BACKGROUND
During the period at issue, Complainant worked as a Quality Assurance Specialist, GS-1910-11, at the Agency's NASA Products Operations, Western Region in Houston, Texas.1
On October 27, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 7, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior EEO activity when:
a. on January 21, 2011, his first line supervisor (S1) issued him a Letter of Warning and Instruction alleging poor performance;
b. on September 16, 2010, the Acting Director, DCMA Western Region issued him a three-day suspension for "Failure to Follow Orders or Instructions;"
c. on July 12, 2010, the GEH Commander issued him a Notice of Proposed Seven (7) Day Suspension;
d. on November 21, 2008, he was not selected for the position of Quality Assurance Specialist (Aerospace), GS-1910-12/12, advertised under Vacancy Announcement Number JAN WTH308949724;
e. on June 13, 2007, he was referred but not interviewed for the position of Supply Chain Integration Specialist, GS-1101-12/12, advertised under Vacancy Announcement Number JAN WTH307975737;
f. on August 4, 2005, the First Line Supervisor issued him an Official Counseling Memorandum for Record;
g. on July 28, 2005, the GEH Commander and First Line Supervisor verbally counseled him for inappropriate behavior and acting unprofessional due to an apparent outburst during the DCMA PQA/Boeing meeting on July 21, 2005; and
h. on or about July 6, 2004, he became aware that the Group Chief, DCMA Western Region did not select him for the position of Quality Assurance Specialist (Aerospace), GS-1910-12, advertised under Vacancy Announcement Number DCMAW-04-3140-DAWIA.
In its January 17, 2011 final decision, the Agency dismissed instant formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO contact occurred approximately nine months days after the most recent alleged discriminatory event occurred.
The Agency also dismissed the instant complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency noted that during the pre-complaint counseling, Complainant stated to the EEO Counselor that he based his reprisal claims on prior administrative grievances, not under Title VII. The Agency determined that the record indicated that Complainant had not made reference to any prior EEO activity, and found that Complainant failed to cite a basis of discrimination within the purview of the Commission's statues and regulations.
On appeal, Complainant makes reference to unsuccessful attempts to schedule an appointment with an EEO official in Dallas, Texas, on various dates in August 2011. Complainant also argues that he contacted an office in Houston in September 2011; that appointments were scheduled for September 20, 2011, and September 26, 2011, but that they were cancelled due to last minute training commitments for employees and an office relocation. Complaint also addresses various attempts to seek EEO counseling in early October 2011, prior to the October 27, 2011 EEO contact date referenced above.
Complainant also argues that deeming "untimely" a formal complaint of his magnitude should "have no bearing on dismissing this complaint in its entirety." Complainant also asserts that an investigation of the subject claims remains appropriate, even if the Agency determines that the complaint was properly dismissed "due to a minor formality."
ANALYSIS AND FINDINGS
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 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 most recent alleged discriminatory event occurred on January 21, 2011, but Complainant did not initiate contact with an EEO Counselor until October 27, 2011, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claims more than 45 days prior to his initial contact with an EEO Counselor.
We note that Complainant claims that he attempted to initiate EEO Counselor contact as early as August 2011. Despite his bare assertion on this matter, the Commission notes that even if we were to determine that Complainant's initial EEO contact occurred as early as August 2011, such initial EEO Counselor contact would still be untimely with regard to the identified claim. In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
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 that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency properly dismissed the instant formal complaint for failure to state a claim. Complainant claimed that he was discriminated against in reprisal for prior administrative grievances. There is no allegation in the record that Complainant engaged in EEO or any other prior protected activity. When a complaint of reprisal is not based on prior EEO or other activity protected by Title VII, the complaint is not within the purview of Title VII and must be dismissed for failure to state a claim. See Bryant v. Department of Justice, EEOC Request No. 05980273 (June 4, 1999).
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.
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
October 10, 2012
__________________
Date
1 The record reflects that Complainant retired from Agency employment effective June 30, 2011.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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