0120161940
11-10-2016
Jeramy R.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jeramy R.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161940
Agency No. ARIMCOMHQ16FEB00605
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 18, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist/Disability Program Manager at the Agency's facility in Fort Benning, Georgia.
In September 2014, Complainant's attorney (Attorney) sought to modify the issues accepted in his pending EEO matter. The Agency asked for additional information specifically if Complainant sought to amend a pending EEO complaint or to start a new precomplaint for a new EEO matter. The Attorney failed to inform the Agency of their wish and did not raise the issues with the Agency. In August 2015, Complainant raised the matter with the Equal Employment Opportunity Commission Administrative Judge (AJ) who was presiding over the hearing request in his pending EEO complaint.2 Complainant asserted that the Agency had not taken action on his complaint he raised in September 2014, as such he wished to raise the claims with the AJ in an EEOC hearing.
The AJ found that Complainant had not shown that he had tried to amend the pending EEO complaint with the additional claims prior to this instant request. As such, the AJ granted Complainant's request to amend the claims that were like or related to the pending. However, the AJ also denied in part Complainant's request finding that some of the claims were unrelated to the pending EEO complaint. The AJ also found that Complainant failed to show that he tried to raise these claims after the Agency requested additional information in September and October 2014, and did not raise these issues with the AJ until August 2015.
Based on the AJ's denial of the unrelated claims, Complainant contacted the Agency to process these claims. Complainant contacted the EEO Counselor on February 17, 2016. When the matter could not be resolved informally, Complainant was issued a notice of right to file a formal complaint. On March 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Nigerian), sex (male), disability, age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. Between October 1, 2013 to September 26, 2014, Complainant was not allowed to attend: (1) EEO Officers Course, (2) Advance Mediation Course, (3) Intermediate CES Leadership Course, and (4) Advanced CES Leadership Course;
2. Between October 1, 2013 to September 26, 2014, Complainant was not provided a mid-point performance evaluation;
3. On September 1, 2014, Complainant was denied monetary awards despite an excellent performance evaluation;
4. On August 25, 2014, Complainant was not promoted and/or selected for the position of a GS-12, EEO Specialist (Job Announcement #SCEA140629441117162) at the Fort Benning, Georgia EEO Office; and
5. From January 27, 2014 to present, Complainant was denied medical accommodations
The Agency dismissed claim (1) - (4) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that the events were raised with the EEO Counselor back in September 2014. However, Complainant's attorney was asked to provide additional guidance to the Agency on whether he was trying to file a new pre-complaint or a request to amend a complaint that was pending before the Agency. The Attorney failed to do so and did not raise the claims until August 2016, with the AJ. The Agency determined that Complainant failed to raise these events with the EEO Counselor within 45 calendar days. Therefore, the Agency dismissed claims (1) - (4). As for claim (5), the Agency noted that this claim is before the AJ as part of Complainant's prior EEO complaint.
This appeal followed.
ANALYSIS AND FINDINGS
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 complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant 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.
Upon review of the record, we find that the Agency's dismissal was appropriate. The record showed that Complainant raised claims (1) - (4) with the Agency but the Attorney failed to inform the Agency whether he wanted to amend the pending complaint or to process the claims as a new matter. The AJ held that Complainant failed to provide evidence that the matter had been raised with the Agency. Further, Complainant requested the hearing with the AJ in February 2015, but did not raise the claims here in until August 2015. In his August 2015 letter to the AJ, Complainant falsely asserted that these claims were accepted as a complaint by the Agency. We find that Complainant has not provided sufficient reason to extend the time limits. Therefore, we affirm the dismissal of claims (1) - (4) pursuant to 29 C.F.R. �1614.107(a)(2).
The Agency dismissed claim (5) pursuant to 29 C.F.R. � 1614.107(a)(1). The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. In claim (5), Complainant asserted that he was denied accommodations since January 1, 2014. The Agency indicated that this claim is part of Complainant's prior EEO complaint which is before the AJ. A review of Complainant's prior EEO complaint indicates that Complainant alleged from May 23, 2011 through August 27, 2014, he was denied reasonable accommodations. As such, we find that Complainant has alleged the same claim that is pending before the AJ. Therefore, we find that the Agency's dismissal of this claim was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 10, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record indicated that Complainant requested a hearing in his pending EEO complaint in February 2015.
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