0120182370
09-18-2018
Elias M,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elias M,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120182370
Agency No. ARAPG16NOV04544
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 13, 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 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 IT Specialist, NH-2210-03 at the Agency's Aberdeen Proving Ground in Aberdeen, Maryland.
On March 9, 2018, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, on May 1, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), age (66), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On March 9, 2018, Complainant stated that the Chief Information Officer (CIO) said that "I know you talked to [your Union Representative.] HR says that you're going to be reassigned to the PEO under the title of Information Security." Complainant stated that he has not had or was afforded an opportunity to attend the CISSP/CP34 classes to further his career.
2. On March 1, 2018, Complainant stated that the CIO began speaking down to Complainant and believes he is being set up for failure.
3. On February 28, 2018, Complainant received a litigation hold order against him, disallowing Complainant to speak to the Union Representative in order to do his job. Complainant believes that all the actions against him are occurring because of a previous EEO complaint filed against the CIP.
4. January 2018, Complainant was denied attendance to the CISSP/CP34 classes/certification to further his career.
5. On September 30, 2017, Complainant received a negative 2 on his CCAS appraisal rating.
The Agency dismissed claims (1), (2), and (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency indicated that Complainant failed to show that the alleged events created a loss or harm to Complainant's term, condition or privilege of employment. In addition, the Agency dismissed claims (4) and (5) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant contacted the EEO Counselor on March 9, 2018, regarding these events which occurred 90 days and 213 days before Complainant's contact. As such, the Agency found that Complainant's contact exceeded the 45-day time limit.
This appeal followed.
ANALYSIS AND FINDINGS
First, we turn to the dismissal of claims (1), (2), and (3). The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails 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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review, we find that Complainant failed to show how he was harmed with respect to the claims alleged in claims (1), (2), and (3). In claim (1), Complainant asserted that the CIO made a comment to him. However, he did not indicate that he was reassigned. In addition, Complainant noted that he had been denied afforded training but he did not indicate that he was denied training at that time. In claims (2) and (3), Complainant alleged that the CIO talked down to him and he was issued a litigation notice. Complainant has not shown that these alleged events created a loss or harm with respect to a term, condition or privilege of employment.
We note that Complainant has asserted that he was subjected to unlawful retaliation for his prior protected activity. Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Upon review, we find that Complainant has not asserted that the claims (1), (2) and (3) were reasonably likely to deter him or others from engaging in protected activity. As such, we find that the Agency's dismissal of claims (1), (2) and (3) was appropriate.
The Agency then dismissed claims (4) and (5) pursuant to 29 C.F.R. �1614.107(a)(2). EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
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.
Here, Complainant contacted the EEO Counselor on March 9, 2018, well beyond the 45-day time limit. Complainant failed to provide any reason or explanation for the tolling of the time-period. As such, we find that the Agency properly dismissed claims (4) and (5) pursuant to 29 C.F.R. �1614.107(a)(2).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 18, 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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