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
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0120091948