0120092949
12-01-2009
Kenneth L. Ratliff, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Kenneth L. Ratliff,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092949
Agency No. ARCEMOBIL09APR01533
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 4, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity (representing
a co-worker during the EEO process) when:
1. On August 20, 2008, complainant was removed from the Overtime Roster
because of statements made by a manager and contract employees.
2. On September 2, 2008, complainant met with Chief of Operations in
order to attempt to be reinstated to the Overtime Roster. On March 17,
2009, he received a response to his request.
3. On January 8, 2009, the Project Manager met with complainant to inform
him that he was accused of sexually harassing a contractor employee.
4. On March 24, 2009, complainant met with an agency official about
seeking a return to the Overtime Roster.
5. On April 8, 2009, the Chief of Operations informed complainant that
a contractor employee charged complainant with sexual harassment.
6. On April 13, 2009, the Project Manager served complainant with a
notice of proposed 45-day suspension.
The agency dismissed claims (3) - (6) pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency noted that
complainant had not been aggrieved. Further, as to claim (6), the
suspension had been a proposed action, as such, it was also dismissed
pursuant to 29 C.F.R. � 1614.107(a)(5). The FAD noted that complainant
contacted the EEO Counselor on April 7, 2009. The agency then dismissed
claims (1) and (2) noting that both events were raised well after the 45
day time period expired for raising a matter to the EEO counselor. As
such, these claims were dismissed pursuant to 29 C.F.R. � 1614.107(a)(2)
for failure to timely contact the EEO counselor.
Complainant appealed. Complainant indicated that the alleged events
occurred due to his representation of a co-worker in the EEO process.
Complainant alleged that because of his work on behalf of a co-worker,
management requested statements from other employees and contractors
in order to lead to complainant's removal. Complainant noted that he
tried to resolve the Overtime Roster issue through his chain of command.
When he could not get a favorable response from management, he turned to
the EEO process. Finally, complainant argued that he in fact has been
aggrieved by the agency's actions. As such, his complaint should not
have been dismissed for failure to state a claim.
Claims 1, 2, and 4
Upon review, we find that the agency improperly defined the claim as three
separate events. The record clearly indicates that on August 20, 2008,
complainant was removed from the Overtime Roster. Complainant attempted
to resolve the matter outside of the EEO process on September 2, 2008
and March 24, 2009. However, the clear issue involved in this claim was
the removal by management of complainant from the Overtime Roster which
occurred on August 20, 2008. 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.
We find that complainant was aware of the issue regarding the Overtime
Roster on August 20, 2008. However, complainant did not contact the
EEO Counselor until April 7, 2009, well beyond the 45 day time limit.
As such, we affirm the dismissal complainant's claim regarding the
Overtime Roster as untimely.
Claims (3) and (5)
The regulation set forth at 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). Regarding complainant's
claim of reprisal, the Commission has stated that adverse actions need
not qualify as "ultimate employment actions" or materially affect the
terms and conditions of employment to constitute retaliation. Lindsey
v. United States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,
the statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
In claims (3) and (5), complainant alleged that he was told by
management that a contractor employee accused him of sexual harassment.
Complainant has not stated a claim when management informed him about
the contractor's allegation of sexual harassment. Complainant did
not show a harm or loss with respect to a term, condition or privilege
of employment. Further, complainant has not shown that being told of a
sexual harassment investigation would be reasonably likely to deter him
or others from engaging in protected activity. As such, we find that
the dismissal of claims (3) and (5) was appropriate.
Claim (6)
In claim (6), complainant alleged that he was discriminated against when
he was issued a notice of proposed 45-day suspension. The regulation
set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory. The record indicates that the suspension raised
was a proposed action. As such, we affirm the dismissal of claim (6)
pursuant to 29 C.F.R. � 1614.107(a)(5).1
CONCLUSION
Accordingly, upon review of the record, we AFFIRM the agency's final
decision dismissing the complaint.
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
December 1, 2009
__________________
Date
1 The record indicates that complainant subsequently received a 30-day
suspension and has filed an appeal with the Merit Systems Protection
Board, MSPB Docket No. AT-0752-09-0780-I-1.
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0120092949
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092949