Jason E. Smith, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity CommissionAug 13, 2009
0120091948 (E.E.O.C. Aug. 13, 2009)

0120091948

08-13-2009

Jason E. Smith, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.


Jason E. Smith,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(National Geospatial-Intelligence Agency),

Agency.

Appeal No. 0120091948

Agency No. NGAW09P04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated February 23, 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).

During the relevant period, complainant was employed as an Intelligence

Analyst close to the end of his two year probationary status at the

agency. On September 22, 20081, complainant initiated contact with

an EEO Counselor alleging that the agency discriminated against him

on the bases of race (Native American) and national origin (Native

American) when (1) around May 2, 2008, complainant's new branch chief

(S1) counseled him for alleged leave abuse, removed him from a maxi-flex

schedule and prevented him from working from home, (2) on May 12 and 13,

2008, respectively, management falsely stated that S1 filed an Inspector

General's investigation on complainant and it forced complainant to resign

from employment under threat of removal, (3) approximately May 19, 2008,

a manager stated to others that complainant was terminated, which caused

contractors to reject complainant's employment applications, and (4)

around July 25, 2008, agency personnel attempted to prevent complainant

from obtaining a security clearance as a contractor. Complainant added

that, on October 23, 2008, a former

coworker who is also a minority told him that he was a target for

disparate treatment and said information prompted complainant to suspect

discrimination rather than just personal dislike or antagonism by

management.

In its February 23 final decision, the agency dismissed (1) - (3)

pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact stating

that, based on the nature of the adverse actions, complainant should have

had a reasonable suspicion of discrimination before the 45-day statutory

deadline and that pertinent EEO contact information was given and posted.

Further, the agency dismissed (4) pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim, stating that complainant did not allege

or suffer a concrete harm but only alleged an attempt by the agency.

The instant appeal from complainant followed.

On appeal, through his attorney, complainant stated that the agency

fragmented his claim rather than viewing it as one of harassment, there

were errors by the EEO Counselor, the agency failed to establish actual

or constructive knowledge of EEO time-frames or that complainant should

have reasonably suspected discrimination before he did. In opposition

to complainant's contentions, the agency provided a training history for

complainant indicating that he attended No FEAR Act training in November

2006 and August 2008, as well as slides from the training containing

EEO contact information and initial deadlines. Further, the agency

provided a declaration from its Associate Deputy EEO Director stating

that it posts signs about the EEO process throughout its facility, all

employees are required to attend a New Employees Orientation Course (NEOC)

that contains EEO contact information and records indicate complainant

attended the NEOC course on April 20, 2007, and records indicate further

that complainant attended No FEAR Act training that contains EEO contact

information on November 30, 2006.

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. Dep't 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. McLouglin v. Dep't of the Treasury, EEOC Request No. 05A01093

(April 24, 2003).

We agree that complainant's claim is more appropriately viewed as one

of hostile work environment harassment supported by incidents (1) -

(4). Hence, we do not consider (4) alone for viability as a claim but

rather together with the other incidents as a harassment claim. Also,

we conclude that complainant initiated EEO contact on September 22, 2008,

at the earliest, and that none of the alleged incidents fall within the

45-day statutory time-frame for that date.

Further, we find that complainant failed to present persuasive arguments

warranting an extension of the time limit for initiating EEO Counselor

contact. Hence, we AFFIRM the final agency decision.

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

August 13, 2009

__________________

Date

1 On appeal, complainant indicated that he initiated EEO contact on

December 6, 2008. However, the September date is indicated on the

Counselor's Report for initial EEO contact and December 6 is indicated

as the interview date.

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0120091948

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091948