01a01194
08-28-2000
Kenneth J. Claiborne v. Department of the Army 01A01194 August 28, 2000 . Kenneth J. Claiborne, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Kenneth J. Claiborne v. Department of the Army
01A01194
August 28, 2000
.
Kenneth J. Claiborne,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A01194
Agency No. 9909J0230
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 29, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (African American) and in reprisal for prior EEO activity when:
On April 12 and 13, 1999, he was sent racial, violent, and physically
threatening e-mails;
On September 14, 1999, [Officer A], a friend of the author of the
discriminatory e-mails, was assigned as his �rater� (representing a
conflict of interest);
Complainant received a substandard performance appraisal that was four
months late and contained �negative bullets� that he knew nothing about;
and
Complainant received a formal reprimand for rude behavior.
In its decision, the agency dismissed claim (1) for untimely EEO Counselor
contact, claim (2) for failure to state a claim, and claims (3) and (4)
as matters that were not brought to the attention of an EEO Counselor.
Specifically, for claim (1), the agency determined that complainant's
September 14, 1999 EEO Counselor contact was more than forty-five days
beyond the April 12 and 13, 1999 dates the e-mails were received, and was
therefore untimely. For claim (2), the agency found that complainant
failed to suffer any direct harm which affected a term, condition, or
privilege of employment as a result of the agency action. For claims
(3) and (4), the agency determined that complainant had not raised the
issue of his performance appraisal or reprimand with the EEO Counselor
during counseling.
The record indicates that during EEO counseling, complainant stated
that he knew some issues were untimely, but that he wanted to give his
�chain of command� the opportunity to handle the e-mails. The record
also shows that Officer A was assigned as complainant's �rater� for one
day before complainant's rating scheme was again changed, and that the
latter action superceded the previous change the day before. Finally,
the EEO Counselor's report, while discussing the change in complainant's
rating scheme, does not mention complainant's performance appraisal or
reprimand as issues raised for counseling.
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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.
Upon review of the record, we find that the agency has properly
dismissed claim (1) for untimely EEO Counselor contact pursuant to 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as 29
C.F.R. � 1614.107(a)(2)). The record is clear that complainant received
the subject e-mails on April 12 and 19, 1999. As complainant's September
14, 1999 initial EEO counselor contact occurred more than forty-five days
after the April 19, 1999 date he last received the alleged discriminatory
e-mail, it was clearly untimely.
With regard to claim (2), the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)) provides, in relevant part, that an agency shall dismiss a
complaint that fails to state a claim. An agency shall accept a complaint
from any aggrieved employee or applicant for employment who believes
that he or she has been discriminated against by that agency because of
race, color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). While complainant
asserts a conflict of interest in the change of his rating scheme, he
has failed to show how the change in his rater for one day represents a
present harm or loss with respect to a term, condition, or privilege of
his employment. We therefore find that the agency has properly dismissed
claim (2) under 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
An agency shall dismiss a complaint which raises a matter that has not
been brought to the attention of an EEO Counselor, and is not like or
related to a matter on which the complainant has received counseling. 29
C.F.R. � 1614.107(a)(2). The Commission finds that the agency properly
dismissed claims (3) and (4). First, although complainant was counseled
on his claim concerning his change of rater, the EEO Counselor's report
does not show that the rater claim had any relationship to complainant's
claim of a substandard performance appraisal, a matter not raised with
the Counselor. As noted above, Officer A was only complainant's rater
for one day, and the record shows that he did not serve as the rater
for complainant's performance evaluation. Similarly, complainant's
claim concerning his reprimand is a distinct claim that was not raised
with the EEO Counselor, and is not like or related to a matter on which
the complainant received counseling. Consequently, the agency properly
dismissed claims (3) and (4) under 29 C.F.R. � 1614.107(a)(2).<2>
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that, in response to complainant appeal, the agency submits
evidence to show that complainant contacted an EEO Counselor on November
1, 1999 concerning the issues in claims (3) and (4) of the instant
complaint, and was issued and signed a Notice of Right to File a Formal
Complaint on November 30, 1999. The agency's response, dated January
14, 2000, indicates that complainant has not filed a formal complaint
on the newly counseled issues.