01995377
04-18-2001
Marlin D. Sharp, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Marlin D. Sharp v. Department of the Navy
01995377
April 18, 2001
.
Marlin D. Sharp,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01995377
Agency No. DON 99-00178-011
DECISION
In a complaint dated April 17, 1999,<1> the complainant alleged
that he was discriminated against in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. when:
On April 28, 1997, he was hired as a GS-9, Step 1, instead of a higher
grade and/or step;
He was reprimanded, berated, and belittled for asking safety questions
and pointing out various safety violations; and
Since April of 1998, complainant has allegedly been the target of general
harassment in an effort to make him quit or to provoke him into providing
a reason for his own dismissal.
In the final agency decision (FAD) dated May 26, 1999, the agency
dismissed claim one pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. The FAD dismissed claims two and three pursuant to 29
C.F.R. � 1614.107(a)(1). For the reasons set forth below, the Commission
AFFIRMS the agency decision.
Claim One
Regarding claim one, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. The record discloses that the alleged discriminatory event
occurred on April 28, 1997, but complainant did not initiate contact with
an EEO Counselor until February 19, 1999, which is beyond the forty-five
(45) day limitation period. On appeal, complainant argues that he was
not aware of the EEO process until February of 1999.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when the individual shows
that s/he was not notified of the time limits and was not otherwise
aware of them, that s/he did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence s/he 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.
In the case at hand, the agency has presented sufficient credible evidence
establishing that complainant knew or should have known of the 45 day time
limit.<2> Thus, we find that the agency has established that complainant
had actual or constructive knowledge of the time limit. See Santiago
v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995).
Claims Two and Three
The Commission finds that claims two and three of the complaint fails
to state a claim under 29 C.F.R. Part 1614 because the allegations,
even if proven to be true, would not indicate that complainant has been
subjected to harassment that was sufficiently severe or pervasive to
alter the conditions of his employment. Moreover, the complaint does not
otherwise challenge an unlawful employment policy or practice. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 18, 2001
__________________
Date
1 Complainant disputes the date of the formal complaint, claiming that
the correct date is April 7, 1999 and not April 17, 1999. The Commission
notes, however, that the date appearing next to complainant's signature
on the formal complaint is April 15, 1999. April 17, 1999 is the date
stamped on the formal complaint as received by the agency, but the use
of one date over another is immaterial to this decision.
2In Yashuk v. United States Postal Service, EEOC Request No. 05890382
(June 2, 1989), the Commission stated that "constructive knowledge will
be imputed to an employee where an employer has fulfilled [its] statutory
obligation by posting notices informing employees of their rights and
obligations under Title VII...." The Commission has further stated
that an agency's generalized statement that it posted EEO information
would be inadequate and that the agency would be required to submit
sufficient information from which the Commission could find that the
poster contained notice of the time limit for initiating EEO counseling.
Pride v. United States Postal Service, EEOC Request No. 05930134 (August
19, 1993), citing Polsby v. Shalala, 113 S. Ct. 1940 (1993).