0120150977
05-10-2016
Harvey G.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harvey G.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120150977
Agency No. DLAF-14-0253
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 2, 2014, dismissing the formal 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
During the period at issue, Complainant worked as a Logistic Management Specialist, GS-13, at the Agency's Headquarters, Defense Logistics Agency (DLA) Pacific in Pearl Harbor, Hawaii.
On August 12, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On November 14, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of sex and age when:
1. on August 1, 2014, the DLA-P Deputy Commander non-competitively selected a younger colleague to fill a permanent GS-14 (DLA-P Exercise Planner) position denying him the opportunity to compete for the position; and
2. on May 2, 2013, the FLA-P Deputy Commander did not allow him to telework from Philadelphia, Pennsylvania but allowed a younger colleague to telework from San Diego, California for six months.
In its December 2, 2014 final decision, the Agency dismissed claims 1 and 2, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. The Agency also dismissed claim 2 on the alternative grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on August 12, 2014, which it found to be beyond the 45-day limitation period for making timely EEO contact.
Complainant, on appeal, argues that the Agency improperly dismissed his formal complaint for failure to state a claim. Regarding claim 1, Complainant states he was "illegally denied the opportunity to promote in favor of younger employees. The case even states that management placed an employee with return rights to a GS 13 position in a newly created non-supervisory position to avoid a RIF [Reduction in Force]. How many other employees are promoted without competing for a job? I informed management that I was interested in applying for the new position, and had I been selected the employee would have gotten my position. I have lost wages and the ability to meet time in grade requirements for government service promotions due to favoritism by management, yet the Agency states I was not harmed."
Regarding claim 2, Complainant argues that "...another younger employee also stationed in Hawaii was allowed to telework from San Diego in excess of 7 months from Hawaii. Management claimed it was a remote work policy program but could not provide the instruction detailing the requirements?...I made a written and verbal complaint on possible fraud waste and abuse hot [line] and was told since I was filing an EEO complaint couldn't file a Hot Line complaint although they are clearly different."
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 2 (untimely EEO Counselor contact)
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.
The alleged discriminatory event identified in this claim occurred on May 2, 2013. However, Complainant did not initiate contact with an EEO Counselor until August 12, 2014, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor. In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed claim 2 on the grounds of untimely EEO Counselor contact.
Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000).
Finally, we find no nexus between this claim and claim 1 (more fully discussed below), which would merit reversal, even though it was untimely raised with an EEO Counselor.
Claim 1 (failure to state a claim)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of C.F.R. � 1614.103. 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).
We find that the Agency's contention that Agency management could not compete the position first because the DLA-P backfilled the younger colleague's position permanently in Hawaii, that the younger colleague had return rights to a GS-13 position in Hawaii and needed to return to the DLA Pacific facility goes to the merits of the formal complaint. In doing so, the Agency is determining that the facts alleged by Complainant in support of his claim are not true. This goes to the merits of the complaint and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under the regulations. See Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). Therefore, we find that the Agency has addressed the merits of claim 1 without having first conducted a factual investigation. The Agency's dismissal of claim 1 was improper.
Accordingly, the Agency's final decision dismissing claim 2 was proper and is AFFIRMED.2 We REVERSE the Agency's final decision dismissing claim 1, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process claim 1 in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Complainants 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
May 10, 2016
__________________
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.
2 Because we affirm the dismissal of claim 2 for the reason addressed above, we will not address alternative dismissal grounds for that claim (i.e. failure to state a claim).
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