0120121030
04-20-2012
Peter M. Solari, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Peter M. Solari,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121030
Agency No. 116588803905
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 18, 2011, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Aircraft Engine Mechanic at the Agency's Fleet Readiness Center facility in San Diego, California.
On October 11, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and age (50) when:
1. on September 14, 2011, his supervisor accused him of being on break time when in reality he was performing a work related task;
2. on June 22, 2011, Complainant and his supervisor discussed expectations regarding the position of Aircraft Engine Mechanic Leader;
3. on June 20, 2011, he was told by his supervisor to work fast so that he could do eight hours of work in six hours;
4. on June 18, 2011, Complainant was terminated from his temporary promotion of Aircraft Engine Mechanic Leader and returned to his position of Aircraft Engine Repairer;
5. in December 2010, Complainant and his supervisor agreed that the position description of Aircraft Mechanic Leader was out-dated and should be corrected, but it was not and Complainant was instructed to complete taskings not on the position description; and
6. from December 2010 until June 2011, his supervisor failed to provide him with training related to the temporary promotion of Aircraft Mechanic Leader.
The Agency dismissed claim 1 for failure to state a claim and claims 2-6 for failing to timely contact an EEO counselor. The instant appeal followed.
ANALYSIS AND FINDINGS
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 a personnel action, within forty-five (45) days of the effective date of the action. A fair reading of allegations (2) through (6) in the instant complaint indicates that they revolve around the June 18, 2011 termination of Complainant from his temporary promotion of Aircraft Engine Mechanic Leader. The record discloses that the alleged last alleged discriminatory event related to Complainant's temporary promotion occurred on June 22, 2011, but Complainant did not initiate contact with an EEO Counselor until August 24, 2011, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Complainant's termination from his temporary promotion was a discrete act, and as such he had a duty to contact an EEO counselor with 45 days of that event. Thus, we affirm the Agency's dismissal of allegations (2)-(6) as untimely raised.
Allegation (1) concerns an event that occurred after Complainant was returned to his former position as a, Aircraft Engine Repairer. The Commission has held that where, as here, a complainant does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In the instant case, Complainant's allegation is insufficient to state a claim of a hostile work environment.
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
April 20, 2012
__________________
Date
2
0120121030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121030