0120101136
05-17-2011
Dominic Prestia, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Dominic Prestia,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120101136
Agency No. 2009-22756-FAA-05
DECISION
Complainant filed a timely appeal with this Commission from a final Agency
decision (FAD) dated July 16, 2009, 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.
ISSUE PRESENTED
Whether the Agency erred when it dismissed Complainant’s complaint for
failure to timely initiate EEO counseling, a portion of the complaint
for failure to state a claim, and another portion for being moot or
alleging that a proposal to take a personnel action was discriminatory.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Airspace and Procedures Specialist at the Agency’s Houston Air
Route Traffic Control Center facility in Houston, TX. He filed a formal
complaint alleging that the Agency subjected him to discrimination on the
bases of sex (male) and reprisal for his wife’s prior EEO activity when:
1. in January 2009, he was subjected to an investigation of an allegation
by a Co-worker 1 (female) that he perpetrated a hostile work environment,
and the investigation was unfairly conducted and wrongly found that he
engaged in harassment; and
2. on February 18, 2009, he was issued a proposed suspension letter
which was subsequently rescinded.
The Agency dismissed the complaint for failure to timely initiate
contact with an EEO counselor. It reasoned that Complainant initiated
contact with an EEO counselor on May 28, 2009,1 beyond the 45 calendar
day time limit.
The Agency also dismissed claim 1 for failure to state a claim.
29 C.F.R. § 1614.107(a)(1). In the investigation, Co-worker 1 alleged
Complainant harassed her after his wife was terminated. Co-worker 1
suggested Complainant believed she was partly to blame, and alleged
Complainant harassed her by doing things such as intimidating and
physically bumping into her, and reporting her for her attire. She also
contended that Complainant told another person that she repeatedly lied
in his wife’s EEO case. The Agency cited Commission case law for
the proposition that an allegation about an agency’s investigation
of a complaint alleging inappropriate behavior fails to state a claim
because the agency is legally obligated to investigate certain types of
complaints raised by employees. It also reasoned that Complainant was
collaterally attacking the investigation.
The Agency also dismissed claim 2 under 29 C.F.R. § 1614.107(a)(5)
for being moot or alleging a proposal to take a personnel action that
is discriminatory.
CONTENTIONS ON APPEAL
Complainant argues that he was not aware of the investigation until
February 18, 2009, when it was shown to him with the letter of proposed
suspension. He contends that after the Agency rescinded the proposed
suspension, he was orally reprimanded on April 1, 2009, for a conversation
mentioned in the investigation, and was informed on April 17, 2009,
that he was being reassigned because he was found to be a perpetrator of
harassment by the investigation. He argues that since he was not aware
until April 17, 2009, that the investigation was being used against him,
he timely initiated EEO counseling on May [28], 2009. He argues that
the proposed suspension claim is not moot since disciplinary action was
taken in the form of an oral reprimand.
The Agency makes no comment on appeal.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit to seek
EEO counseling shall be extended when an individual shows he did not
know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2).
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. Department 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.
The record contains a copy of the January 30, 2009, final investigative
memorandum, which shows Complainant was interviewed by the manager
investigator sometime prior. Complainant appears to argue that he
contacted an EEO counselor within 45 calendar days of realizing that
there was discrimination.
Complainant was aware of the harassment investigation against him in
January 2009, and he saw the investigative findings on February 18, 2009.
In a March 4, 2009, response to the proposed suspension, Complainant wrote
it charged him with “inappropriate conduct” toward Co-worker 1, with
the specification that he exhibited inappropriate conduct toward her from
April to December 2008, culminating in unacceptable physical contact in
December 2008. In this response, Complainant contended that the charges
were untrue, and that the report of investigation contained numerous
untrue and unsubstantiated charges. He continued in this response that
he believed Co-worker 1 conspired with others to get his wife terminated,
that she filed an EEO complainant naming Co-worker 1 and others, and he
believed Co-worker 1 and others (who participated in the investigation)
had hard feelings toward him because his wife filed an EEO complaint in
which they were named.
Applying the above regulation and case law, we find that Complainant
had a reasonable suspicion of discrimination about the investigation
and proposed suspension by February 18, 2009, when he saw the report of
investigation and proposed suspension. By March 4, 2009, he explicitly
raised his suspicion of reprisal discrimination. The subsequent alleged
oral reprimand and reassignment were supportive facts.
Accordingly, we find that Complainant’s contact with an EEO counselor
on May 28, 2009, was untimely with regard to claims 1 and 2.2
We find that the oral reprimand, which Complainant raises for the first
time on appeal, was not part of his complaint. He contends on appeal
that as a result of the investigation, he was orally reprimanded on
April 1, 2009. He did not raise the oral reprimand in a letter to the
EEO counselor or in his July 7, 2009, complaint, instead wrote in both
places he received no punishment as a result in the investigation.
Regarding the involuntary reassignment, Complainant wrote on appeal
that he was informed on April 17, 2009, that he would report to his
new location upon his return from vacation. On this matter, we refer
to Prestia v. Department of Transportation, EEOC Appeal No. 0120093295
(January 29, 2010). Therein, the Commission affirmed the dismissal of
Complainant’s complaint about this involuntary reassignment because
he previously filed a grievance on the same matter. This matter is not
before us.
The FAD 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
May 17, 2011
__________________
Date
1 In its FAD, the Agency indicated Complainant contacted an EEO counselor
on May 29, 2009. The counselor’s report reflects that the initial
contact occurred on May 28, 2009, and the initial interview was on May
29, 2009.
2 Since we affirm the dismissal of Complainant’s complaint for failure
to timely initiate EEO counseling, we need not address whether claim 1
states a claim or whether claim 2 was properly dismissed for being moot
or being a proposed action.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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