0120160994
04-19-2016
Carter R.,1 Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carter R.,1
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120160994
Agency No. GSA-15-CO-C-0151
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated December 17, 2015, 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., 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 was an applicant for the position of Human Resources Specialist - Employee and Labor Relations at an unspecified facility in Washington DC. On November 20, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Native American), sex (male), disability (unspecified physical disability), age (74), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On June 4, 2015, Complainant was notified that he was not qualified for the position of Human Resources Specialist, Employee and Labor Relations - GS-201-13, under vacancy announcement number 1503055MSMP;
2. Complainant was required to submit his Formal complaint after he had already submitted it during the Counseling process; and
3. The Agency refused to send Complainant information he requested through a Freedom of Information Act (FOIA) request.
The Agency dismissed claim 1 for untimely EEO Counselor contact. With regard to claims 2 & 3, the Agency dismissed them on the grounds that they had not been raised before the EEO Counselor and were not like or related to claims raised before the Counselor. Furthermore, with regard to claim 3, the Agency noted that the Commission does not have jurisdiction over the processing of FOIA requests and hence Complainant failed to state a claim.
ANALYSIS AND FINDINGS
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. The record discloses that Complainant was notified that he had not been selected for the position on June 4, 2015, but he did not contact an EEO Counselor until September 21, 2015 which is beyond the forty-five (45) day limitation period.
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. On appeal, Complainant contends that the Agency has identified the wrong position, and states that he applied for two positions, one at the GS-13 level and the second at the GS-12 level. Complainant argues that his claim is about the GS-12 position, not the GS-13 position. We note, however, that despite the Dismissal notifying him that his claim was being dismissed for untimely Counselor contact, Complainant has not specifically identified when he learned he had not been selected for the GS-12 position. We therefore find he has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
With regard to claim 2, we note that the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, or disabling condition. 29 C.F.R. �� 1614.103, 106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to claims alleging retaliation, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). We find that claim 2 should be dismissed for failure to state a claim because EEO regulations require that complainants must first submit an Informal Complaint followed by a Formal Complaint, see 29 C.F.R. �� 1614.105 and 106, and we find that being required to follow regulations does not render Complainant aggrieved, nor is it reasonably likely to deter Complainant or others from engaging in protected EEO activity.
With regard to claim 3, we find that Complainant again fails to state a claim because, as pointed out in the Dismissal, this Commission does not have jurisdiction over the processing of FOIA requests.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 19, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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