0120080709
09-16-2009
James A. Homolka, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
James A. Homolka,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120080709
Agency No. FSA-2005-00291
DECISION
On November 21, 2007, complainant filed an appeal from the agency's
November 6, 2007 final decision concerning his equal employment
opportunity (EEO) complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Field Assistant/Reporter in the Farm Service Agency (FSA), Nance
County Office, in Fullerton, Nebraska. Complainant was employed as a
temporary part-time employee. Complainant worked under the supervision
of former County Executive Director (CED), Person A, from approximately
1995 to 2006.
Complainant filed an EEO complaint dated May 25, 2005, alleging that he
was discriminated against on the bases of sex (male) and in reprisal for
prior protected EEO activity and a prior grievance filed in 19941 when:
1. Complainant was not selected to the position of Program Technician
(CO-5) in March 2001;
2. On an unspecified date, the County Executive Director (CED) stated,
"If [complainant] get a regular position, one of you may have to go;"
3. On an unspecified date, the agency removed seventeen years of service
from complainant's form 50-B;
4. On an unspecified date, the agency excluded complainant from all
staff meetings and restricted him from working in the office; and
5. On an unspecified date, the agency reduced complainant's temporary
field work employment time.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing before an AJ. On April 19, 2006, the AJ remanded the complaint
to the agency for issuance of a final decision.
Thereafter, the agency issued a final decision on November 6, 2007,
concluding that complainant's complaint was untimely filed. The agency
stated that the incidents at issue occurred between 1994 and 2004;
however, complainant did not initiate EEO Counselor contact until March
25, 2005. The agency argued that the discriminatory acts were discrete
in nature and found no basis for finding the claims timely under a
"continuing violation" theory. The agency stated with the exception of
issue (1), it was dismissing all issues as untimely filed.
With regard to issue (1), the non-selection for the Program Technician
position, the agency noted that complainant had more work years of
experience working in the field than the Selectee (W1). However, the
Selecting Official (Person A) stated W1 was selected because she had
prior work experience in the Nance County FSA Office as a temporary
office employee. W1 had also performed well in a Program Technician
position, the same position at issue, in another county. The Selecting
Official stated that he considered work experience, work ethic, computer
skills and the ability to get along with others and handle programs and
procedures. The selecting official stated that W1 had more experience
than complainant in instituting programs, in computer work, and in office
work. The agency found complainant did not meet his burden of showing
that he was subjected to discrimination based on sex with regard to the
non-selection. Assuming arguendo the remaining claims were timely, the
agency concluded that complainant failed to prove that he was subjected
to discrimination as alleged with regard to those claims.
On appeal, complainant argues that issues (2) through (5) were ongoing
problems. Complainant also states the agency has been giving him "a
total run around for the last 14 years, while reprisal was on going."
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
At the outset, we address the agency's dismissal of complainant's
complaint for failure to timely contact an EEO Counselor2. 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 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
With regard to issue (1), the record reveals that the non-selection for
the Program Technician position occurred in March 2001. The record
reveals complainant initially contacted an EEO Counselor with regard
to his non-selection in 2001. Complainant states in his affidavit that
"[a]t the time [he] felt [he] was being discriminated against based on
[his] sex" but he did not pursue the matter in 2001 because he did
not have proof at the time. Person A stated he was contacted by an
EEO Counselor in 2001 regarding the non-selection. Complainant states
that he does not believe reprisal was a factor in his non-selection.
A complainant who receives counseling on an allegation, but does not go
forward with a formal complaint on that allegation is deemed to have
abandoned it, and consequently, cannot raise it in another complaint.
Small v. United States Postal Service, EEOC Request No. 05980289 (July 16,
1999) (citing Robinson v. Peace Corps, EEOC Request No. 05940170 (May
2, 1995)). The record establishes that complainant initiated contact
with an EEO Counselor in 2001, and that complainant raised the issue
of his 2001 non-selection. However, complainant did not file a formal
complaint on that claim. Complainant therefore abandoned the claim and
was barred from raising the same matter in the instant complaint.
Complainant claims he later learned in March 2005, that co-worker 1
(CW1) filed a sexual harassment complaint against Person A, and he claims
that Person A's selection to hire W1, CW1's friend, was based on CW1's
submission to sexual harassment. However, we find this discovery in 2005
does not alter the fact that complainant reasonably suspected in 2001
that his non-selection was based on sex, as he admitted in his affidavit.
Even assuming that complainant did not have a reasonable suspicion of
discrimination until he learned of the 2005 sexual harassment complaint,
we note that CW1 stated in her affidavit that that the alleged sexually
harassing conduct began in 2004 and thus, we find the 2005 complaint
bears no relation to the 2001 non-selection. Furthermore, complainant
did not show that his qualifications for the Program Technician position
were plainly superior to those of the selectee.
With regard to issue (2), complainant claimed that Person A made
comments to his coworkers that if he got a regular position one of
the other workers in the office may have to go. In his affidavit,
complainant stated that Person A made this statement on a couple of
different occasions in 2003 and 2004. Complainant stated Person A made
the comments to the four female Program Technicians working in the office
to "play[] the girls against [him]." Complainant states that reprisal
was not a factor with regard to issue (2). Since the comments at issue
occurred at the latest in December 2004, we find complainant's March 25,
2005 counselor contact was untimely.
With regard to issue (3), complainant contends that the agency removed
seventeen years of service from his form 50-B. Complainant states that
he believes the agency's actions were taken in reprisal for protected
activity. He states that he does not believe that his sex was a factor
in the agency's actions. Complainant explains that in January 1994,
the Agricultural Stabilization Conservation Service Form, form 50-B,
listed his service computation date as December 10, 1973. Complainant
states that from 1995-1999, his service computation date was left blank
on his form 50-B. Complainant states that beginning in October 1999,
his form 50-B reflected a service computation date of April 3, 1994.
Complainant notified Person A of his concerns regarding his service
computation date. Complainant's service computation date was corrected
in January 2003. Although complainant pursued the matter with agency
officials, he did not raise the matter with an EEO Counselor until March
25, 2005. In the present case, we find issue (3) was properly dismissed
for failure to timely raise the matter with an EEO Counselor.
With regard to issue (4), complainant claimed that beginning in 1996,
he was excluded from all staff meetings, with the exception of one staff
meeting on November 23, 2004, where he was confronted by Person A and
a Program Technician concerning a statement complainant allegedly made.
Complainant claims that staff meetings were held bi-weekly, or as needed
and he was never invited to any other staff meetings. Complainant stated
that the lack of information available from the staff meetings left him
uninformed in the field when working with producers. Complainant states
he felt removed from the system. He alleges that Person A restricted
him from working in the office because Person A only wanted to work
around females.
With regard to issue (5), complainant contends that the agency reduced his
temporary field work employment time in reprisal for protected activity.
Complainant stated he does not believe the reduction of field work
was based on sex. Complainant explains that prior to March 1994,
he was classified as a part-time temporary employee with a three day
a week tour-of-duty and he claims that he was working full-time hours.
On March 24, 1994, complainant states that the part-time field staff were
each limited to working a maximum of 1,040 hours each year. Complainant
states that prior to March 1994, he had been working full-time hours.
Moreover, complainant states that at this time, the agency took away his
tour-of-duty which allowed for a set schedule and qualified him for annual
leave, holiday pay and sick leave. Complainant states that on January 20,
1995, the former State Executive Director sent out a memorandum stating
that it is preferred that the agency hire temporary office employees
instead of using the temporary field employees to work in the office.
Complainant states that prior to this time he had been doing office and
filed work; however, after this time he was only permitted to work in
the field. He states this took more hours away from his 1,040 hour
yearly limit. Complainant also notes that on February 26, 2003, he
received an electronic mail message informing him that field reporters
are to be classified as part-time temporary field employees and cannot
work tours of duty; however, part-time office staff are eligible to be
placed on tours of duty and receive leave and benefits.
Based on the fact that complainant claims that he was continually denied
the opportunity to attend staff meetings and that he was denied the
opportunity to work in the office on a continuing basis, we will address
the legitimate, nondiscriminatory reasons the agency advanced for its
actions. With regard to issue (4), the record reveals that complainant
was not invited to staff meetings because he was a Field Reporter and
much of the information did not apply to his duties. Person A explained
that when it was necessary to pass on information to complainant, then
he or another member of the staff would meet with complainant in person.
We find complainant did not prove that the agency's articulated reasons
were a pretext for discrimination.
With regard to the claim that complainant was not allowed to work in
the office after the agency issued a directive that temporary office
employees should be hired instead of using temporary field employees to
work in the office, the record reveals that this was a national policy
that applied to all field reports across the country. Moreover, the
Agricultural Program Specialist at the time, stated that the tour of duty
was also taken away because the decision was made at the national level
that these positions were incorrectly classified. Similarly, the record
reveals the decision to eliminate tours of duty from field employees was
a national decision that applied to field reporters across the country.
We find complainant did not show that the agency's actions were based
on discriminatory animus.
Accordingly, the agency's final decision is AFFIRMED.
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 16, 2009
__________________
Date
1 In his affidavit, complainant acknowledges that the 1994 grievance
did not allege discrimination.
2 We note that complainant does not challenge the AJ's remand of his
complaint to the agency for a final decision. Accordingly, we do not
address in this decision whether the AJ's remand was appropriate.
??
??
??
??
2
0120080709
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120080709