0120072508
01-09-2009
James P. Cooney, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
James P. Cooney,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120072508
Agency No. 2006-20555-FAA-06
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated August 8, 2006, pertaining to his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Believing that he was subjected to discrimination when he was not
selected for the FAA Safety Team Manager position, complainant contacted
the EEO office. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on July 3, 2006, complainant filed
a formal complaint based on age and reprisal. The agency framed the
claims as follows:
(1) Complainant was notified on May 11, 2006, that he was not selected
for the position of FAA Safety Team Manager (GAO), FG-1825-14, Vacancy
Announcement No. ANM-FS-06-1797463-82664; and
(2) Complainant was subjected to harassment by management in an attempt
to force him to retire starting in November 2002.
The agency issued a decision dismissing the complaint. With respect
to claim (1), the agency reasoned that complainant previously raised
the matter in a negotiated grievance procedure that permits allegations
of discrimination. Regarding claim (2), the agency dismissed the claim
pursuant to 29 C.F.R. 1614.107(a)(2). Complainant claimed that starting
in November 2002 he was subjected to several months of harassment, which
he believed was done in an effort to force him to retire. Moreover,
complainant asserted that the same supervisor removed him from the Safety
Program shortly thereafter. The agency concluded that the alleged events
occurred well before complainant's May 19, 2006 counselor contact and that
complainant failed to raise the harassment issue during EEO counseling.
Complainant filed the instant appeal.
On appeal, complainant argues that his grievance and EEO complaints were
not filed on the same matter. According to complainant, the grievance
concerned the agency's failure to follow its rules regarding selections
under the competitive bid process, while the EEO complainant addressed
age discrimination. With respect to the harassment claim, complainant
asserts that he "discussed each and every allegation in the complaint
with the EEO Counselor . . . ."
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
regarding his non-selection for the Safety Team Manager position on
May 23, 2006, before his formal EEO complaint was filed on July 3,
2006. While complainant attempts to distinguish the grievance and EEO
complaint, the Commission is not persuaded. We find that complainant is
challenging his non-selection for Vacancy No. ANM-FS-06-1797483-82654
in both instances. Additionally, the record shows that under the
terms of the agency's union agreement, employees have the right to
raise matters of alleged discrimination under the statutory procedure
or the negotiated grievance procedure, but not both. As the record
indicates that complainant elected to pursue the matter within the
grievance procedure, we find that the agency properly dismissed claim
(1) pursuant to 29 C.F.R. � 1614.107(a)(4).
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.
In his formal complaint, complainant references "several months" of
harassment that started in November 2002. However, he did not contact
the EEO Counselor until years later, on May 19, 2006. We find that the
agency properly dismissed claim (2) for untimely counselor contact.
Additionally, the Commission does not find that the harassment claim
is reflected in the Counselor's Report, nor do we find that the matter
is "like or related" to the non-selection claim. A later claim or
complaint is "like or related" to the original complaint if the later
claim or complaint adds to or clarifies the original complaint and could
have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990).
CONCLUSION
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
January 9, 2009
__________________
Date
2
0120072508
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120072508