Cruz M,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionMay 29, 20180120162836 (E.E.O.C. May. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cruz M,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120162836 Agency No. DON-16-42158-01821 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 11, 2016, 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 Machinist, WG- 3414-10, at the Agency’s Norfolk Naval Shipyard in Portsmouth, Virginia. On July 18, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of his race (White) and age (44) when: (1) on December 14, 2015, management initiated a pre-action investigation against him for harassing a coworker; and (2) on April 18, 2016, a management official walked past him and mumbled something under his breath. In its final decision, the Agency dismissed claim (1), pursuant to 29 C.F.R. §1614.107(a)(2), for untimely EEO counselor contact. Specifically, the Agency found that Complainant did not initiate EEO contact until April 19, 2016, which was three months after the date of the alleged discriminatory incident. The Agency also dismissed claim (2), pursuant to 29 C.F.R. §1614.107(a)(1), for failure to state a claim, as Complainant failed to show that he was 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. 0120162836 2 aggrieved. On appeal, Complainant reiterates his contention that he was subjected to unlawful discrimination. ANALYSIS AND FINDINGS With respect to claim (1), 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. 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. Here, we find that the Agency correctly determined that Complainant’s EEO Counselor contact concerning claim (1) was beyond the 45-day limitation period. Complainant has not indicated that he was unaware of the time limitations for timely contacting an EEO Counselor; nor does he indicate that he was prevented by reasons beyond his control from contacting an EEO Counselor in a timely manner. As to claim (2), we note that 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). Here, we concur with the Agency that Complainant failed to establish that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Even assuming the incident occurred as alleged, Complainant has not shown how he was harmed by the management official’s action. Accordingly, claim (2) does not state a viable claim of discrimination. CONCLUSION The Agency’s final decision dismissing the complaint is AFFIRMED. 0120162836 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120162836 4 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. signature Carlton M. Hadden, Director Office of Federal Operations May 29, 2018 Date Copy with citationCopy as parenthetical citation