0120120049
11-21-2012
Jewell W. Childers, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Jewell W. Childers,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120120049
Agency No. 11-4523A-02467
DECISION
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to timely contact an EEO Counselor. For the reasons set forth, we AFFIRM the Agency's decision dismissing the complaint.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Welder, WG-3703-10, at Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Complainant sought counseling and subsequently filed a formal complaint.
Complainant alleged that he was subjected to discrimination on the basis of age (over 40) when, on April 5, 2011, he became aware that direction he received from a prior General Forman in May 2004, caused him to resign his "lead supervisor" position in 2004, creating a hostile work environment and loss of advancement in his trade.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to timely contact an EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of discrimination to be brought to the attention of the EEO Counselor within 45 days of the date of the claimed discriminatory matter, or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission's regulations, however, provide that the time limit will be extended when the complainant shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. See 29 C.F.R. � 1614.105(a)(2).
Complainant alleged that he was unaware the incident in May 2004, was discriminatory until his current supervisor told him that he did not have to perform duties assigned by another supervisor. The Commission applies a "reasonable suspicion" standard to the triggering date for determining the timeliness of the contact date with an EEO Counselor. Under this standard, the time period for contacting an EEO Counselor is triggered when Complainant should reasonably suspect discrimination. In 2004, Complainant stated that he did not agree with the Agency's chain of command protocols so he resigned his position as "lead supervisor." Complainant has failed to show evidence to support a reasonable suspicion of age discrimination based on the information he gained on April 5, 2011. A "mere feeling" that a matter of personnel action is discriminatory does not rise to the level of the reasonable suspicion standard and is not reason enough to require the Agency to toll the 45 day time limit for counseling. See Cochran v. United States Postal Service, EEOC Request No. 05920399 (1992) and Alberts v. United States Postal Service, EEOC Request No. 01A61532 (2006).
We concur with the Agency and find that Complainant did not initiate contact with an EEO Counselor until May 9, 2011, which is beyond the 45-day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence on appeal warranting an extension of the time limit for initiating EEO Counselor contact.1
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
November 21, 2012
__________________
Date
1 Since we are affirming the Agency's dismissal of the complaint on the grounds of untimely contact with an EEO Counselor, we will not address the Agency's alternative grounds for dismissal, i.e., failure to state a claim.
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0120120049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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