0120101340
06-30-2010
James J. Jimenez, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
James J. Jimenez,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120101340
Agency No. 9DIS09026
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 11, 2009, 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
Complainant contacted the EEO office on January 13, 2009. When the matter
was not resolved informally, Complainant filed a formal complaint on
April 19, 2009. In his complaint, Complainant alleged that the Agency
subjected him to harassment on the bases of color (Brown), age (54),
and reprisal for prior protected EEO activity. In support of his claim
of harassment, Complainant raised the following factual allegations:
1. From 2005 to the present, agency officials manipulated and fabricated
evidence in an effort to remove Complainant from his position of Deputy
Chief of Police.
2. From 2005 to the present, the Agency failed to take immediate and
timely corrective and/or progressive disciplinary action for alleged
violations that occurred during the calendar years of 2005 and 2006.
3. From 2005 to the present, the Agency took actions to diminish, minimize
and undermine the authority, grade and stature of the Complainant's
position as Deputy Chief of Police.
4. From 2001 to the present, the Agency failed to protect Complainant
and other Hispanic employees from discriminatory practices.
5. Agency officials provided preferential treatment by committing
irregularities in the personnel review of the 61st Security Forces
Squadron Selection Process and Procedures and Potential Prohibited
Practices dated May 8, 2006.
6. Fro 2005 to the present, agency officials failed to maintain high
standard of integrity and/or to ensure that all employees receive fair
and equitable treatment in all aspects of personnel management.
7. From 2000 to the present, agency officials used their official
positions to provide preferential treatment to Coworker 1 and Coworker 2.
8. From 2000 to the present, agency officials provided preferential
treatment by exerting their influence to dictate Alternative Dispute
Resolution (ADR) settlements.
9. From 2005 to the present, agency officials collaborated with union
officials to solicit testimony from subordinate bargaining unit members
with intent that it be used against Complainant.
10. On November 19, 2008, the Agency issued a Notice of Proposed Demotion
to Complainant from his position of Deputy Chief of Police.
The Agency dismissed the claim of harassment comprised of allegations (1)
- (9) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The Agency noted that the events alleged were too general in nature
and Complainant failed to provide any specific incidents in support of
his claim of harassment. The Agency also dismissed allegations (1)-(9)
pursuant to 29 C.F.R. � 1614.107(a)(2) noting that Complainant failed
to raise them in a timely manner. Finally, as to allegation (10), the
Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(5) finding
that the claim involved a preliminary step to taking a personnel action.
In addition, the Agency noted that subsequently, Complainant was issued
a demotion on July 5, 2009, which is the subject to an appeal with the
Merit Systems Protection Board (MSPB).
CONTENTIONS ON APPEAL
Complainant appealed asserting that the dismissal of the complaint was
not appropriate. Specifically, Complainant argued that the complaint
clearly stated a viable claim of retaliatory harassment. Complainant
contended that the actions he faced were part of the Agency's attempts
to retaliate against him.
In addition, Complainant asserted that he was timely in his contact.
He indicated that he received the proposed demotion on November 19, 2008.
Following receipt of the proposed action, Complainant requested additional
information. The Agency responded to the information request on December
3, 2008. Therefore, Complainant argued that his contact on January 2,
2009 was within 45 calendar days. As such, Complainant requested that the
Commission reverse the Agency's final decision dismissing his complaint.
The Agency requested that the Commission affirm its final decision
dismissing the complaint at hand.
ANALYSIS AND FINDINGS
Allegation (10)
We note that in allegation (10), Complainant alleged discrimination
when he received a Proposed Demotion on November 19, 2008. The Agency
asserted that Complainant filed an appeal with the MSPB once he received
a final determination on the Demotion. The regulation set forth at 29
C.F.R. � 1614.107(a)(5) provides, in part, that the Agency shall dismiss
a complaint that alleges that a proposal to take a personnel action, or
other preliminary step to taking a personnel action, is discriminatory.
Upon review, we find that the Proposed Demotion raised in allegation
(10) was appropriately dismissed pursuant to 29 C.F.R. � 1614.107(a)(5).
We note that once the Agency issued the Demotion in July 2009, the
Proposed Demotion and the Demotion claims merge. Complainant filed an
appeal with the MSPB in which he could raise his claim of retaliation.1
Therefore, we find that the matter was properly dismissed.
Allegations (1) - (9)
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 the appellant can establish that
appellant was not aware of the time limit, that appellant did not know
and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence appellant
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.
Complainant asserted on appeal that his contact was timely as to his
Proposed Demotion. The Supreme Court has held that a hostile work
environment claim is an amalgamation of incidents that "collectively
constitute one unlawful employment practice." Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 117 (2002). Unlike discrete acts, the
incidents that comprise a hostile work environment claim "cannot be
said to occur on any particular day" and by their "very nature, involve
repeated conduct." Id. at 115. Because a hostile work environment claim is
comprised of various incidents, the entire claim is actionable if at least
one incident occurred within the filing period. Here, however, we have
affirmed the dismissal of allegation (10). As such, we determine that
there was no actionable incident that was raised in what was identified
as allegations (1) through (9) within the filing period. Therefore,
we find that Complainant's claim of harassment comprised of allegations
(1) - (9) was properly dismissed pursuant to 29 C.F.R. �1614.107(a)(2)
for untimely EEO contact.2
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency's final decision dismissing
the complaint at hand.
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 (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 (Z0610)
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
June 30, 2010
__________________
Date
1 We note that Complainant withdrew his appeal with the MSPB. Therefore,
on March 19, 2010, the MSPB Administrative Judge dismissed Complainant's
appeal with prejudice.
2 Since the Commission has affirmed the dismissal of the claims (1) - (9)
pursuant to 29 C.F.R. �1614.107(a)(2), we need not address the Agency's
dismissal of the complaint for failure to state a claim pursuant to 29
C.F.R. �1614.107(a)(1).
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0120101340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101340