0120113691
11-28-2012
Jason Lamons, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Jason Lamons,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120113691
Agency No. 11-0050-AL
DECISION
Complainant filed an appeal with this Commission from the Agency's Final Decision dated June 16, 2011, 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. For the following reasons, the Commission AFFIRMS the Agency's Final Decision dismissing Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nuclear Materials Courier at the Agency's facility in Amarillo, Texas. On May 1, 2011, Complainant filed a complaint alleging that the Agency subjected him to discrimination on the bases of race and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On December 6, 2010, Complainant attended a meeting between the Unit 4 Convoy Commanders and his supervisor, S1, the purpose of which was to intimidate and threaten him for opposing sex-based discrimination that Complainant observed committed by identified fellow agents towards a female military soldier during a trip in November 2010.
2. On March 17, 2011, Complainant was informed by his Unit Commander that he received negative feedback regarding his performance during a training exercise by a convoy commander (S2) that did not observe the training exercise.
3. On March 18, 2011, Complainant was forced to decline travel assignments, which are a major duty of his position, due to ongoing harassment and out of fear of additional reprisal.
4. Complainant has been slandered, subjected to disparate treatment, and harassment creating a hostile work environment because of his opposition to the manner in which a female military member was treated by Complainant's coworkers during a November 2010 trip and bringing the issue to management's attention.
On June 18, 2011, the Agency issued a Final Decision dismissing the complaint. In its Decision, the Agency found that claim (1) was not presented for EEO counseling within 45 days of when Complainant should reasonably have suspected discrimination. The Agency noted that Complainant initiated the EEO complaints process on March 22, 2011, which is beyond the 45-day time limit. The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency further dismissed claims (2) through (4) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that these claims were too broad and vague. The Agency also found that Complainant was not aggrieved by the Agency's actions described in claims (2), (3), and (4). The Agency therefore dismissed Complainant's claim in its entirety.
ANALYSIS AND FINDINGS
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 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. 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.
In the instant case, we find the Agency properly dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. At the earliest, Complainant contacted an EEO Counselor on March 21, 2011. We find that Complainant has not provided any explanation for his failure to present claim (1) for EEO counseling within the 45-day time limit. Accordingly, we find claim (1) is properly dismissed pursuant to 29 C.F.R. �1614.107(a)(2).
Regarding claim (2), we find the incident described in this claim insufficient to state a claim based on reprisal. We find that Complainant has not indicated that the identified documentation is reasonably likely to remain in the supervisor's possession and the Agency indicates that no discipline or further action was taken regarding this report. We find Complainant has now shown that he is aggrieved by the actions described in claim (2). See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
We find that a fair reading of claims (3) and (4) is that these incidents are not separate claims, but instead describe the alleged general damage to Complainant's reputation and impact upon his career from the actions described in claims (1) and (2). To the extent they were intended as separate claims, we find these claims point to no distinct agency action that rendered Complainant aggrieved and are therefore properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision dismissing the complaint.
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
November 28, 2012
__________________
Date
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0120113691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113691