0120182084
09-13-2018
Kennith M.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kennith M.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120182084
Agency No. ARRUCKER18FEB00664
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 13, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as an Airspace System Inspection Pilot, GS-2181-13 at the United States Army Aviation Center of Excellence (USAACE), Air Traffic Services Command, Quality Assurance Division, Flight Inspection Section in Fort Rucker, Alabama.
On April 3, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination based on his national origin (Hispanic) and reprisal under an unspecified statute when:
1. In early 2015, his supervisor (S1) proposed suspending his security clearance;
2. In early 2015, his security clearance was suspended temporarily;
3. On March 4, 2015, he was placed on paid administrative leave (because his access to classified and sensitive information was suspended until further notice); and
4. Effective November 23, 2015, he was indefinitely suspended without pay (for the same reason as above).
The Agency dismissed the entire complaint because Complainant failed to timely initiate EEO counseling. It reasoned that he initiated EEO counseling on February 26, 2018, long after the 45-calendar day time limit. It dismissed issue 4 because under 29 C.F.R. � 1614.107(a)(4), he elected the Merit Systems Protection Board (MSPB) forum thereon. The Agency also used other grounds for dismissal which we need not address here. The instant appeal followed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). 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. Howard v. Department of the Navy, EEOC Request No. 05970852 (Feb. 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.
Complainant's security clearance was suspended because he double accounted for his time on a timecard - for the same work he was paid by two different federal employers - resulting in double pay.2
Complainant contended that he did not become aware that he was disparately treated until he learned on February 16, 2018, from his union representative that the Agency at Fort Rucker has been paying many personnel thousands of unearned hours over an approximately 10-year period. He relayed to the EEO counselor that this occurred in other units. The record contains a letter dated February 5, 2016, on union letterhead by an Agency employee who until March 2012 served as a Helicopter Flight Instructor, and a letter dated February 8, 2016, to the union by an Agency Aircraft Instructor Pilot. The Helicopter Flight Instructor wrote that in his years serving in this job, managers had the practice of releasing staff early when there was not enough work, the work was done, at holiday time, on Fridays before the weekend, and allowing Instructor Pilots to be on call rather than report to work, and nevertheless in all these circumstances allowing these staffs' timecards to reflect eight hours of work daily. The Aircraft Instructor Pilot wrote he had the collateral duty of being the keeper of time cards and his letter generally corroborated the Helicopter Flight Instructor's letter. He added that when he explained to management that it was illegal to charge eight hours on a time card for work that was less than eight hours, management told him to mind his own business and just enter the full eight hours.
Complainant initiated EEO counseling more than 21/2 years after receiving the AR 15-6 investigative report which allowed him to understand why the actions complained of were taken.
Complainant contends that the 45-calandar time limit to initiate EEO counseling should be extended because he was not aware that he was treated differently until February 2018, when he was informed of this by his union representative. We are not persuaded. We don't see how the new information triggered this suspicion. The new information regarded employees in other units, not his, who with the knowledge and consent of their management were permitted to charge more time than they worked. Complainant does not contend that he allegedly falsified his time card with the knowledge and consent of his supervisor, or that others in his unit were permitted to do so.
Complainant filed an appeal with the MSPB on November 30, 2015, on his indefinite suspension, and in a final order dated September 26, 2016, the MSPB upheld the suspension. He filed his EEO complaint thereon on April 3, 2018. We find that Complainant elected the MSPB forum on issue 4 - the indefinite suspension. 29 C.F.R. � 1614.107(a)(4).
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
September 13, 2018
__________________
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 contains an MSPB initial decision dated April 6, 2016, upholding Complainant's indefinite suspension from work, and a final Board decision dated September 26, 2016, affirming the initial decision. In its initial decision, the MSPB recounted that in an Army Regulation (AR) 15-6 report dated January 8, 2015, the Agency found that on several dates in December 2014, Complainant reported hours with both the Air Traffic Services Command and the United States Army Reserve, on December 4 and 10, 2014, he failed to inform his supervisors that he was beginning his tour of duty resulting in exceeding his tour of duty, and he logged time and submitted documentation to the United States Army Reserve for aviation career incentive pay, total operational flying duty credit, and requirement pointed, in violation of an Army regulation. In holding that the Agency did not commit harmful procedural error, the MSPB found that Complainant received the AR 15-6 investigation on June 15, 2015, which while redacted, still provided a detailed account of the factual basis for the Agency's decision to suspend his clearance, including specific dates and amounts of his alleged timekeeping infractions. The MSPB did not rule on the suspension of Complainant's security clearance.
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