0120092055
09-18-2009
Ed Kulzer, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.
Ed Kulzer,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120092055
Agency No. NRC0901
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 18, 20081, 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability (occlusive disease, blind in
right eye), age (from 56 to 62 years of age at the time of the various
incidents described), and reprisal for prior protected EEO activity
under a statute that was unspecified in the record when:
1. From September 5, 2002 to November 14, 2008, complainant was subjected
to a hostile work environment.
The agency dismissed the claim finding that complainant's EEO counselor
contact was untimely for some of the actions complained of, and the
remaining actions were insufficiently severe or pervasive to state a claim
of harassment. Complainant listed numerous acts of alleged harassment
which we identify as follows:
1. On or about September 5, 2002, after filing his "Differing Profession
View," complainant's performance rating declined to a rating of 2.0 in
2002 and 1.5 in 2003;
2. On or about November 17, 2003, through mediation between the Union
and Regional Deputy Administrator concerning an unfair labor practice,
complainant was transferred to the Materials Inspection Branch;
3. On August 31, 2007 complainant applied for the position of Manager
of Safety and Health but never heard anything back about the position;
4. In October 2007 complainant took a five day Transportation of
Radioactive Material Course H-308, with a four hour open book exam at
the conclusion of the course;
5. On or about June 25, 2007 the Branch Chief (RMO1) told complainant
that he could no longer write violations in the field and that he had
to bring them back to the office;
6. In February 2008, despite complainant's explanation that he had vision
problems and would prefer not to repeat the exam, RMO1 told complainant
to retake the four hour open book exam he had failed the previous October,
without waiting for documentation from complainant's physician;
7. On February 20, 2008, complainant was informed he had again failed
the open book exam;
8. On some unspecified date, RMO1 informed complainant that RMO1 would
take complainant out on two independent inspections and RMO1 would observe
complainant and would write a note to his file stating that complainant
could continue to conduct independent inspections if the two supervised
inspections were successful;
9. On March 7, 2008 RMO1 yelled at complainant for not having the file
available on one of the supervised inspections;
10. On some unspecified date, complainant was wrongly held responsible
for errors committed by others;
11. On September 22, 2008 RMO1 informed complainant he had 45 days to pass
the third examination and subsequently provided him with accommodations
to complete the task;
12. On or about September 26, 2008 agency management officials disagreed
with a Union Stewart who argued that complainant should not be required
to take refresher training;
13. In October 2008 complainant attended the training course again where
he met another Senior Resident Inspector who had failed the same course
but did not receive any threatening memorandum, unlike complainant;
14. From October 28 to 31, 2008 complainant re-took the examination in
his office with accommodations for his visual disability; and
15. On either November 14 or 162, 2008 complainant learned via electronic
mail that he had passed the examination.
The agency found that complainant first contacted an EEO counselor on
September 30, 2008 and that the actions complained of in incidents 1
through 93 were therefore untimely raised. The agency further found that
the remaining incidents failed to state a claim of either harassment or
disparate treatment when viewed individually.
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.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
As regards the incidents 1 through 3, 6, and 7, we find that these
constitute "discrete acts" under Morgan and that complainant's EEO
counselor contact was untimely. We further find that complainant, on
appeal, has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact
As regards the remaining incidents detailed in his complaint, Commission
finds that even if considered together, they fail to state a viable
claim under the EEOC regulations because complainant failed to allege
that he was subjected to unwelcome verbal or physical conduct involving
his protected classes, that the harassment complained of was based
on his statutorily protected classes, and that the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982)). Nor has he shown he suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
For the above reasons we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 18, 2009
__________________
Date
1 The FAD is dated March 18, 2008 but since the Formal Complaint was
filed on November 26, 2008, complainant's appeal was filed on April 16,
2009, and the agency does not argue that complainant's appeal is untimely,
we presume the actual date of the FAD is March 18, 2009.
2 The FAD indicates that complainant learned that he passed the exam on
either November 14 or November 16, 2008.
3 These incidents are numbered differently in the FAD.
??
??
??
??
2
0120092055
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092055