0120073622
01-15-2008
Steven W. Hudson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Steven W. Hudson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073622
Agency No. 07-00178-01638
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated July 18, 2007, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On February 15, 2007, complainant initiated contact with an Equal
Employment Opportunity (EEO) Counselor alleging that the agency subjected
him to discrimination on the bases of age (over 40) and reprisal for
prior protected EEO activity when it (1) on September 7, 2006, awarded
him only a nominal increase in his DEMO continuous pay award from the
previous year, although he increased his work efforts for 2005 - 2006 and
(2) did not give sincere consideration to his request for reconsideration
of the September 2006 DEMO payout1. Subsequently, complainant filed a
formal EEO complaint reiterating the above claims and adding that (3)
in early 2005, he saw two personnel actions for a female coworker, who
was under the age of 40, indicating her receipt of a higher bonus and
continuous pay award than complainant. Later, complainant alleged that
(4) an EEO Representative delayed processing of and provided inaccurate
information regarding the instant claims.
In its July 18 final decision, the agency dismissed (1) for untimely
initial contact with an EEO Counselor, (3) for failure to raise the matter
with an EEO Counselor, and (4) for failure to state a claim because it
is a "spin-off" complaint. The agency did not address (2) individually.
The instant appeal from complainant followed. On appeal, complainant
stated that he did not suspect discrimination until he received a copy
of the DEMO formal appeal facilitator's document on January 4, 2007.
He explained that the facilitator's document provided a rationale for
the denial of a payout change.
In pertinent part, the EEOC Regulation found at 29 C.F.R. � 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. � 1614.105. EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of an EEO 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. 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. Dep't 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.
As indicated in 29 C.F.R. � 1614.105(a)(1), complaints of discrimination
should be brought to the attention of an EEO 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. In reference to (1) and (2), the agency
issued complainant's DEMO payout in September 2006 and, in a November 2006
email, indicated its final decision to leave the payout award unchanged.
However, complainant did not initiate EEO contact until February 15, 2007,
which is outside of the 45-day statutory timeframe. Complainant stated
that he did not suspect discrimination until he received a January 2007
investigatory report on his DEMO payout. However, this Commission is not
persuaded that such a delay in reasonable suspicion was the case here.
Regarding (3), we agree with the agency that complainant did not
initiate EEO contact on the matter. It appears that complainant
simply added, to his formal complaint, a like action or supporting
evidence that preceded the 2005 - 2006 DEMO award payment. However,
assuming complainant did initiate contact for (3) on February 15, 2007,
his contact would be untimely. Finally, as to (4), we agree that it is
a spin-off complaint as defined in the EEOC Management Directive 110,
5-14 and, thus, fails to state a claim. After a careful review of the
record, we AFFIRM the agency's dismissal of the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
January 15, 2008
__________________
Date
1 The record indicates that complainant filed for reconsideration
of his 2005 - 2006 DEMO payout on September 28, 2006 and received a
reconsideration decision via email on November 21, 2006. The November
21 email stated that it was a follow-up to a one-on-one discussion with
complainant about the findings and that an investigation rendered no
compelling data to support a change in complainant's DEMO payout.
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0120073622
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073622