0120092181
08-26-2009
Jon J. Cramblett,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092181
Agency No. ARCEPORT08OCT04726
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 5, 2009, dismissing 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), and (2) for
stating the same claim that is pending processing with the agency and
for untimely EEO Counselor contact.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of age (56) and reprisal for prior protected
EEO activity under the ADEA when: 1) during his lengthy attempt to get
hired for a better position, agency officials with the HR and the EEO
offices purportedly advised him a few years ago, to strip his resume and
application of all information which would reveal complainant's age to
the selecting officials, including but not limited to his veterans status
(Viet Nam); 2) from 2004 through December 2, 2008, management did not
consider him for vacancy announcements including but not limited to a
list of jobs for which he has applied (list of 110 jobs); 3) on or about
June 12, 2008, he was not selected for the McNary Dam Rigger position
(WB-5210-0, Announcement #WTHE07129243 & WTHE07246497); and 4) on July
15, 2008, he was notified that he was not selected for two positions at
Bonneville Dam (Welder and Rigger positions, WB-3703. Announcements #
WTHE07129243 & WTHE07246497).1 Complainant initiated contact with an
EEO Counselor on October 1, 2008.
In its final decision, the agency dismissed claims 1 through 4 for
untimely EEO Counselor contact; claim 1 also for failure to state a claim;
and claim 2 also for stating the same claim that is pending processing
with the agency.
The record reflects that claim 2 is being processed through another
EEO component of the agency. 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.
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
On appeal, complainant mainly asserts that his claims of non-selection
for various positions constitute a "continuing violation" and are
thereby timely. In its appeal reply, the agency states that:
Complainant did not initiate contact with an EEO counselor within 45-days
of the date he knew or should have known of the matters alleged to be
discriminatory. Complainant has also failed to justify an extension
of the 45-day timeline for initial contact with an EEO counselor.
Complainant clearly knew or reasonably should have known of the time
limits when he completed POSH and No Fear trainings in 2006, 2007, and
2008, when those trainings included information on the applicable time
limits; when he had access to EEO posters in his workplace; and when
he was referred to the Portland and Walla Walla District EEO websites.
Complainant has not submitted adequate evidence to justify equitable
tolling of the 45-day time limit. Filing a grievance does not toll
the time limits, nor did the agency, as Complainant contends, waive the
time limits. Complainant's continuing violation theory is not viable
under Morgan, as the discriminatory acts are discrete employment actions.
The Commission finds that concerning claims 1, 3 and 4, complainant
did not initiate contact with an EEO Counselor until October 1, 2008,
which is beyond the forty-five (45) day limitation period. On appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Further, claim 2 is a restatement of a previous claim that is already
being processed within the agency. Accordingly, the agency's final
decision dismissing complainant's complaint is 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
August 26, 2009
__________________
Date
1 On May 8, 2009, complainant filed a Statement in Support of Appeal
specifically appealing these 4 claims. However, the record reflects
that on March 5, 2009, the agency dismissed additional claims pursuant to
29 C.F.R. � 1614.107(a)(1) for stating the same claim pending elsewhere
before the agency.
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0120092181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092181