01a44355
03-23-2005
Arnold L. Janousek, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Arnold L. Janousek v. Department of the Interior
01A44355
March 23, 2005
.
Arnold L. Janousek,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A44355
Agency No. BIA-03-005
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), sex
(male), and age (date of birth: January 9, 1930) when:
On March 5, 2002, complainant alleged that he was harassed by his
supervisor, when she kept pressuring him to sign off on the acknowledgment
copy of a Letter of Reprimand that she had issued complainant.
On August 8, 2002, complainant was downgraded from the GS-12 grade level
to the GS-11 grade level.
Believing that he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on November 14, 2002.
On March 13, 2003, the agency notified complainant that claim 2 in his
complaint had been accepted for investigation and processing. At the
conclusion of the investigation, the agency informed complainant of his
right to request a hearing before an EEOC Administrative Judge (AJ),
or alternatively, to receive an immediate final decision from the agency.
When complainant failed to respond within the time period specified in 29
C.F.R. �1614.108(f), the agency issued a final decision on May 14, 2004.
Regarding claim 1, the agency dismissed the claim pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. As to claim 2,
the agency found no evidence of discrimination and determined that
complainant had not been discriminated against. The agency, in its
decision, concluded that it asserted a legitimate, nondiscriminatory
reason for its actions, which complainant failed to rebut.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for the downgrade. A review of the record indicates that the
Division Chief of Administration stated that, after a desk audit of
complainant's position was conducted in April 2000, complainant's
supervisor failed to take any action to remedy deficiencies in
complainant's position description for approximately two years. The
Division Chief of Administration reported that the Office of Personnel
Management (OPM) mandated that all IT Specialist positions be changed
to Computer positions nationwide. The Division Chief of Administration
expressed that she instructed complainant's supervisor to take some
sort of action. The Division Chief of Administration indicated that
complainant's supervisor complained to her that complainant could not do
the duties that were specified in the GS-12 Computer Specialist position
description. The Division Chief of Administration mentioned that she told
complainant's supervisor to talk with Personnel to make sure that it was
the correct position description and then to have either complainant
perform at the GS-12 level of that position or rewrite the position
description to fit what complainant was actually doing. The Division
Chief of Administration stated that there was no budgetary reason to
reduce complainant's grade level. The Division Chief of Administration
said that neither she nor the former Regional Director had any input
into the action to reduce the grade level of complainant's position.
The Classification Specialist reported that the former Regional Director
requested a desk audit of complainant's position because the computer
field had changed so much, and the position descriptions were totally out
of date. The Classification Specialist stated that complainant's duties
changed and that he was doing a lot of administrative-type functions and
was not doing what his position description provided. The Classification
Specialist reported that he informed complainant's supervisor in 2000,
after complainant's desk audit was completed, that complainant's
position description needed to be rewritten and reclassified.
The Classification Specialist mentioned that, in the Fall of 2001, OPM
changed the standards for Computer Specialists and changed the series
from GS-0334 to GS-2210. The Classification Specialist commented that he
switched the other Computer Specialist positions to the new series, but
could not do anything with complainant's position without a new position
description. The Classification Specialist indicated that complainant's
old position series would not operate in the personnel payroll system
after November 2001. The Classification Specialist remarked that he
reviewed and edited several drafts of the position description with
complainant's supervisor. The Classification Specialist said that he
was not instructed by management to reduce complainant's grade level.
The Classification Specialist reported that complainant's desk audit
indicated that complainant's work load was approximately 60 to 70 percent
administrative, GS-7 or GS-9 level work, but since complainant still
performed technical work, his grade warranted higher than a GS-9, but not
a GS-12. The Classification Specialist commented that complainant will
retain his salary until such time that a GS-11, through pay increases,
would match whatever salary complainant was making. Complainant has
failed to rebut the agency's articulated legitimate, nondiscriminatory
reasons for the downgrade. Moreover, complainant has failed to show,
by a preponderance of the evidence, that complainant's downgrade was
motivated by discrimination on the bases of race, sex or age.
Regarding complainant's claim that he was harassed by the supervisor,
when she kept pressuring him to sign off on the acknowledgment copy
of a Letter of Reprimand that she had issued complainant, the record
discloses that the alleged discriminatory event occurred on March
5, 2002. We concur with the agency and find that complainant did not
initiate contact with an EEO Counselor until, at the earliest, August
30, 2002, which is beyond the forty-five (45) day limitation period.
See 29 C.F.R. � 1614.105(a)(1). Furthermore, we find that complainant
should have reasonably suspected discrimination more than 45 days prior
to his initial EEO Counselor contact. Complainant has presented no
persuasive arguments or evidence on appeal warranting an extension of
the time limit for initiating EEO Counselor contact.
The agency's decision is AFFIRMED.
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
March 23, 2005
__________________
Date