0120140766
04-23-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140766
Agency No. ARMYER13JUN02470
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 18, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Director, Installation Safety Officer at the Agency's Installation Safety Office in Ft. Myer, Virginia.
On August 21, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male),1 color (Black), age (45), and reprisal for prior protected EEO activity when: (1) on May 16, 2013, his supervisor verbally counseled him for misappropriation of a government vehicle; (2) on March 4, 2013, his supervisor denied his request to increase his mass transit benefit allotment; (3) in January 2013, she denied his request for sick leave; (4) on January 18, 2013, he was issued a notice of proposed removal; (5) on October 31, 2012, his supervisor issued him a notice of proposed suspension for misconduct.
The Agency dismissed all of the claims because Complainant raised them in an appeal before the Merit Systems Protection Board (MSPB) and because claims 2-5 were untimely raised with an EEO counselor. The instant appeal followed.
ANALYSIS AND FINDINGS
Same Claim as MSPB Appeal
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides for the dismissal of a complaint where the complainant has raised the same matter in an appeal to Merit Systems Protection Board and made an election to pursue the non-EEO process.
The record shows that Complainant was issued a Notice of Removal on June 12, 2013. He appealed the removal to the MSPB. In his MSPB appeals statement, he referenced all same incidents referenced in the instant EEO complaint as background evidence in support of his challenge to his ultimate removal, which also alleges was discriminatory.
However, we find that the Agency erred in dismissing the instant EEO complaint pursuant to 20 C.F.R. � 1614.107(a)(4). The MSPB's appellate jurisdiction is restricted to certain kinds of personnel actions. See 5 C.F.R. � 1201.3. Removals are one of those personnel actions. However, the events referenced in Complainant's EEO complaint, while they might be considered as background evidence in his removal appeal, are not actions of the type that the MSPB has jurisdiction to address and/or remedy if discrimination were found. Therefore, we find the Complainant could not elect to pursue them in the MSPB appeals process.
Accordingly, we reverse the Agency's dismissal for making an election to the MSPB, and will proceed to examine the Agency's alternative reasons to dismiss the claims.
Claims 2-5: Timeliness
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.
The record discloses that with respect to claims 2-5, the last alleged discriminatory event occurred on March 4, 2013, but Complainant did not initiate contact with an EEO Counselor until June 12, 2013, which is beyond the forty-five (45) day limitation period. The record supports the Agency's claim the Complainant was aware, or should have been aware, of the time limitation. Complainant concedes he did not intend to file an EEO complaint at an earlier date and alludes to being afraid of retaliation. However, the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Def., EEOC Request No. 05930898 (Dec. 9, 1993).
Complainant attempts to avoid dismissal on timeliness grounds by alleging that he was subjected to ongoing discriminatory harassment that included his one timely raised claim (claim 1). The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. We find that each of events alleged in claims 2 - 5 were discrete personnel actions and thus are not actionable because they are time-barred.
Claim 1: Failure to State a Claim
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that 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. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
We note that Claim 1 was timely raised with an EEO counselor, but find that, even if proven true, by itself would not render Complainant sufficiently aggrieved to state a viable claim of discrimination.
CONCLUSION
For the reasons set forth above, the Agency's final decision dismissing the 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 23, 2014
__________________
Date
1 On appeal, Complainant states he is not pursuing a sex discrimination claim.
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0120140766
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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