0120181919
09-11-2018
Elden R.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elden R.,1
Complainant,
v.
Michael R. Pompeo,
Secretary,
Department of State,
Agency.
Appeal No. 0120181919
Hearing No. 570-2016-01532X
Agency No. DOS-0024-16
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 7, 2018, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Passport Specialist, GS-11 at the Agency's Bureau of Consular Affairs, Passport Agency facility in Houston, Texas.
On January 4, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Panama), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
Section 501 of the Rehabilitation Act of 1973 when:
1. On November 2, 2015, Complainant learned that he would be placed on a Performance Improvement Plan (PIP).
2. Since 2011, he has been repeatedly denied the opportunity to rotate into the fraud section.
3. He was subjected to a hostile work environment characterized by, but not limited to inappropriate and demeaning comments, inappropriate touching, heightened scrutiny, and threats.
The Agency accepted the matter for investigation. During the investigation, additional documentation was received by the Agency showing that Complainant had alleged the same matters in a union grievance.
Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency filed a motion to dismiss the matter procedurally. Complainant, through counsel, filed his motion in response to the Agency's request to dismiss the complaint. In his response, Complainant indicated that he did file grievances which were denied by the Agency. The AJ issued a decision dismissing the matter.
As for claim (1), the AJ noted that a grievance had been filed on Complainant's behalf addressing the PIP. The November 16, 2015 grievance challenged the PIP which was denied by the Agency on December 15, 2015. Therefore, the AJ dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4).
Regarding claim (2), the AJ held that Complainant asserted that he was placed on the PIP because he had not been provided with exposure of experience of his job. As a result of the failure to rotate to the fraud section, he was placed on the PIP. Based on Complainant's assertions, the AJ stated that that the rotation to the fraud section was not a separate claim but a part of his PIP claim. As such, claim (2) was similarly dismissed as part of claim (1), pursuant to 29 C.F.R. � 1614.107(a)(4). In addition, the AJ found that Complainant had been provided with a fraud section assignment, which he declined.
Finally, as to claim (3), the AJ noted that Complainant alleged that he had been subjected to a hostile work environment when he was placed on the PIP, denied the rotation, and subjected to heightened scrutiny. The AJ noted that the PIP and the alleged denial of rotation were previously dismissed. The AJ also indicated that Complainant asserted that he informed the EEO Counselor that a male management official had touched his buttocks, someone used inappropriate language, a retired employee put his hand to his throat, and a supervisor claimed that his reading and understanding is not up to level. Complainant informed the EEO Counselor that these events occurred from five to six months prior to his EEO Counselor contact. The AJ found these events were not connected to the timely events alleged in claims (1) and (2), which were both dismissed. Therefore, the AJ held that Complainant failed to raise these events in a timely manner and dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
The Agency implemented the AJ's dismissal decision. This appeal followed without specific comment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
In the instant case, Complainant claimed that he was subjected to discrimination when he was placed on a PIP. In support of his claim, Complainant asserted that he had been denied rotations in the fraud section which resulted in the PIP. The record shows that when Complainant raised the PIP through the grievance procedure, it included the denial of the rotational assignment to the fraud section. The record included copies of the grievance matters, which have been closed. We find that Complainant alleged claims (1) and (2) in a grievance process that allowed consideration of his discrimination claims. As such, these claims were properly dismissed from the EEO complaint process, pursuant to 29 C.F.R. � 1614.107(a)(4).
Finally, in claim (3), Complainant alleged he was subjected to a hostile work environment. In support of his claim, Complainant asserted incidents which, as he stated, occurred five to six months prior to his EEO Counselor contact in October/November 2015. As noted above, claims (1) and (2) have been dismissed and are not part of Complainant's claim of harassment.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, we find that Complainant has not alleged or provided specific clarification of timely events which he believed to have created a hostile work environment. The only events provided by Complainant occurred some five to six months prior to his EEO Counselor contact. His contact was well outside of the 45-day time limit and Complainant provided no reason to toll the time frame. As such, we conclude that Complainant's claim of harassment was raised in an untimely manner pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Therefore, upon review of the record, we AFFIRM the Agency's final decision implementing the AJ's decision dismissing the complaint at hand.
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.
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
September 11, 2018
__________________
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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