0120120864
10-10-2012
Reginald McNeely, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Reginald McNeely,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120120864
Agency No. DEA-2011-01019
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 7, 2011, dismissing a formal 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 Public Affairs Specialist, GS-14, at the Agency's Office of Congressional and Public Affairs, Drug Enforcement Administration in Arlington, Virginia.
On June 3, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On September 2, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race, sex, and in reprisal for prior protected activity when1:
1. on June 1, 2010, he received a response letter from his United States Senator in regard to his External Employee Grievance. The contents of the letter led him to believe that the Agency misled him, and was untruthful with the Senator on matters concerning his annual performance appraisal, position description, etc.;
2. on January 5, 2011, he was summoned to meet with management regarding a letter that he sent to his United States Senator, during the meeting, he was accused of making slanderous remarks in his letter and told he could be charged with slander;
3. on November 24, 2010, he was notified that he would be transferred to the Congressional and Public Information Section;
4. on November 3, 2010, he received an unwarranted low annual performance appraisal rating of "Successful" for the rating period October 1, 2009 through September 30, 2010;
5. in 2008, while in a meeting, management openly discussed hiring a white male that he was in competition with for a job. Subsequently, the white male was awarded the job and he was not.
6. in November 2007, the Division Chief (DC) changed his work hours due to her negative perception about him during a meeting. Complainant's request for reconsideration to change his work hours was denied by DC;
7. in October 2007, DC requested that Complainant's supervisor change and lower Complainant's annual performance appraisal from "Outstanding" to a lower rating;
8. from 2005 to 2009, he was blamed for things that went wrong and were subjected to unreasonable, relentless demands by management; and
9. on two occasions, he was not selected and promoted to the position of Public Affairs Specialist, GS-14, within his division.
In its November 7, 2011 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency found that Complainant did not initiate EEO Counselor contact until June 3, 2011, which was approximately 5 months beyond the requisite 45 day period for contact.
The Agency also found that Complainant failed to set forth persuasive reasons for tolling the time limitation period. The Agency noted that in his statements and letter to a United States Senator, Complainant initially became aware of the discriminatory actions against him beginning in March 2008. Specifically, the Agency noted that Complainant first sought to redress his grievance by writing to his Senator in March 2008, December 3, 2010 and March 29, 2011, instead of initiating an EEO complaint of discrimination.
Further, the Agency acknowledges that Complainant stated that May 25, 2011 was the most recent alleged discriminatory event when Complainant received a letter from a United States Senator on June 1, 2011. The Agency noted, however, that the Senator's letter was simply a reply to Complainant's grievance, not a discriminatory action. Moreover, the Agency found that this explanation was insufficient to extend the time period for EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that his EEO contact was timely. For instance, Complainant argues that it was not until June 1, 2011, that he first suspected he was being discrimination against. Specifically, Complainant states that when he received Agency management's "last response from the U.S. Senator, June 01, 2011, he knew that management had no intention of addressing his concerns and they (management) were being evasive. Due to management's inability to produce or convey the criteria by which the writer of this appeal and all of the similarly situated employees (in his job title and series) were rated in lieu of the variations within their actual job assignments and collateral duties the writer of this appeal was inclined to precipitate an EEO complaint on the grounds of Discrimination. It was at that time that the writer of this appeal felt discrimination was the motive behind management's low evaluation rating; therefore he sought EEO counseling, June 03, 2011 [emphasis in its original]."
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 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 she 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 Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The last alleged discriminatory occurred on January 5, 2011. However, Complainant did not initiate contact with an EEO Counselor until June 3, 2011, beyond the forty-five day limitation period. On appeal, Complainant argued that it was not until June 1, 2011, that he first realized that he was being discriminated against by Agency management. Complainant's assertion that he first developed a reasonable suspicion of discrimination at that time, based on the Agency's evasive response to a United States Senator concerning his work concerns. Complainant's reliance on the Senator to resolve his concerns regarding the alleged discriminatory incidents does not excuse an untimely EEO Counselor contact. The Commission has consistently held that the utilization of agency proceedings, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Complainant did not provide sufficient justification for waiving or tolling the time limitation.
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact 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 reprisal as a basis was later amended to the instant formal complaint.
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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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