01A43318_r
10-20-2004
Larry E. Davenport, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Larry E. Davenport v. Department of Homeland Security
01A43318
October 20, 2004
.
Larry E. Davenport,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A43318
Agency No. CBP-04-C014
DECISION
On April 21, 2004, complainant filed an appeal with this Commission
from a March 18, 2004 agency decision, dismissing claims (1), (2),
(3), and (4) of his complaint pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact and claims (5) and (6) for failure
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In his November 11, 2003 complaint, complainant alleged that he was
subjected to discrimination on the basis of reprisal for prior EEO
activity when:
1. From 1993 until June 2, 2003, complainant was not selected for GS-11
Intelligence Officer positions in Marfa Sector;
2. From March 1993 until June 2002, complainant was given substandard
recommendations;
3. From 1996 to 2002, complainant was not selected for supervisory
border patrol agency (SBPA) positions in Presidio, Texas, as well as
other stations in Marfa Sector and throughout the country;
4. On January 15, 2001, complainant became aware of his nonselection
for an SBPA position in Marfa Sector under vacancy announcement MSP ll
DGL 2000-152;
5. From December 2002 until June 2003, the agency failed to notify
complainant of an appeal decision in his prior case issued on December
3, 2002 by the Equal Employment Opportunity Commission (EEOC), Office
of Federal Operations; and
6. On October 28, 2003, complainant was denied relocation expenses
to Presidio, Texas, as relief ordered by the EEOC in its December 3,
2002 order.
As an initial matter, the Commission takes notice that in Larry
E. Davenport v. Department of Justice, EEOC Appeal No. 01A11580
(December 3, 2002),we issued a decision regarding a prior complaint
that complainant filed on December 13, 1996. In the prior complaint,
complainant alleged that he was discriminated against on the basis of
reprisal when: (1) in August 1996, the patrol agent in charge (PAIC)
failed to notify him that applications for firearms instructor training
were being solicited, and hid the applications from complainant; (2) in
August 1996, he was not selected for the position of senior patrol agent,
vacancy announcement ACD OC 96-090 in Presidio, Texas; and (3) he was
denied firearms instructor and driver instruction training held throughout
1996 at the Border Patrol Academies in New Mexico, Georgia, and Texas.
Complainant appealed the agency's decision finding no discrimination
to the Commission. The Commission found discrimination with regard to
claim (2) and ordered, among other things, that complainant be offered
the position of senior patrol agent in Presidio, Texas.
The Commission also takes notice that complainant petitioned for
clarification of the Commission's order in EEOC Appeal No. 01A11580,
regarding whether the agency was required to provide complainant with
moving expenses. The petition for clarification was docketed as
Larry E. Davenport v. Department of Homeland Security, EEOC Petition
No. 04A40014.<1> In its April 14, 2004 decision on the petition,
the Commission determined that the agency was not obligated to pay
complainant's moving expenses.
Untimely EEO Counselor Contact
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 EEO Counselor
within the time limits, or for other reasons considered sufficient by
the agency or the Commission.
In dismissing claims 1, 2, 3, and 4 on the grounds of untimely EEO
Counselor contact in the present complaint, the agency stated that
complainant failed to contact an EEO Counselor until August 1, 2003,
which was beyond the requisite 45-day time period. The agency also
concluded that complainant had failed to provide justification to extend
the time to initiate contact, noting that because complainant was aware
of the entire record of his earlier complaint by the time the agency
issued its report of investigation on the prior complaint in May 1999,
he should have had a reasonable suspicion of discrimination by May
1999, and before June 2003, the date when complainant alleged that he
became aware of the Commission's decision in EEOC Appeal No. 01A11580.
The agency also noted that complainant was aware of the time limitation,
having served as a collateral EEO Counselor from May 1992 to October
1995, having received five days of EEO Counselor training, and having
filed a prior discrimination complaint. Regarding claim 2, the agency
noted that effective June 1, 2002, complainant ceased working for the
Border Patrol and began working as an air marshal.
On appeal, complainant asserts that the agency should be estopped from
raising the issue of untimeliness, alleging that the agency had engaged
in active misconduct and fraud by not providing him with a copy of the
Commission's decision in EEOC Appeal No. 01A11580. He asserts that
it was not until June 2003, when he became aware of the Commission's
decision in EEOC Appeal No. 01A11580, and when he received a report from
the Office of Special Counsel in July 2003 indicating that he had been
"blackballed" by the agency for events stemming from his having engaged
in protected EEO activity in 1993, that he suspected that he had been
discriminated against.
The record contains the EEO Counselor's Report which reflects that
complainant initiated EEO contact on August 1, 2003, regarding the
claims raised in his complaint. The Counselor's Report also reveals
that complainant indicated that he did not become aware that he was
discriminated against until June 29, 2003, and also, that he was unaware
that he was being retaliated against when he filed his prior complaint
on December 13, 1996.
The Commission concludes that the agency's dismissal of claims 1 through
4 was proper for untimely EEO Counselor contact. Complainant has
not provided adequate justification to extend the time limitation
period. The Commission finds that complainant did not contact an
EEO Counselor until August 1, 2003. In his complaint, complainant has
not identified any alleged discriminatory event that occurred within
45 days of initiating EEO Counselor contact. Although complainant
has alleged that he did not suspect discrimination until 2003, after
becoming aware of the Commission's December 2002 decision in EEOC Appeal
No. 01A11580 for the first time and receiving a report from the OSC,
the Commission is not persuaded that the time limitation period should
be extended. Here is a complainant who is alleging that he was subjected
to discrimination from 1992, who not only filed a prior complaint of
retaliatory discrimination in December 1996, but who also included in
the prior complaint a claim of discriminatory nonselection in 1996,
and other allegations of discrimination. Complainant, therefore,
should have had a reasonable suspicion of discrimination more than 45
days before his August 1, 2003 EEO Counselor contact.
The Commission has held that waiting until one has all the supporting
facts or proof of discrimination before initiating a complaint can
result in untimely EEO Counselor contact. See Bracken v. United
States Postal Service, EEOC Request No. 05900065 (March 29, 1990).
Additionally, although complainant asserts that he also did not suspect
discrimination until he received a report from the OSC, we have held that
internal efforts concerning an agency's adverse action do not toll the
running of the time limit to contact an EEO Counselor. See Clifford
v. Department of Treasury, EEOC Appeal No. 01A20349 (March 8, 2002)
(claim that reasonable suspicion did not arise until receipt of response
to Freedom of Information Act request rejected); Steinert v. Department
of Veterans Affairs, EEOC Request No. 05960535 (October 10, 1997) (time
limit for EEO Counselor contact not tolled where complainant raises a
complaint with the Office of Special Counsel).
Failure to State a Claim
EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides that an agency
may dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103 or states the same claim that is pending before or
has been decided by the agency or Commission. In order to establish
standing initially under 29 C.F.R. �1614.103, a complainant must be
either an employee or an applicant for employment of the agency against
which the allegations of discrimination are raised. In addition,
the allegations must concern an employment policy or practice which
affects the individual in his or her capacity as an employee or applicant
for employment. 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. See 29
C.F.R. � 1614.103; � 1614.406(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. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 22, 1994). To state a
claim under the Commission's regulations, an employee must allege and
show an injury in fact. Specifically, an employee must allege and show
a direct, personal deprivation at the hands of the employer, that is,
a present and unresolved harm or loss affecting a term, condition,
or privilege of his employment.
In dismissing claims 5 and 6, the agency noted that complainant alleged
that the agency failed to notify him of the Commission's decision
in EEOC Appeal No. 01A11580 and to implement the relief ordered by
the Commission in EEOC Appeal No. 01A11580. The agency stated that
it was the responsibility of the Commission, and not the agency, to
notify complainant of the issuance of a Commission's decision, and the
Commission had certified in its decision that it had mailed complainant
a copy of the decision in December 2002. The agency also stated that
complainant's allegation of noncompliance needed to be pursued under
the procedure identified in EEOC Regulation 29 C.F.R. � 1614.503, and
not under the procedure for filing a formal complaint of discrimination.
The Commission finds that claims 5 and 6 were properly dismissed.
Claim 5 fails to state a cognizable claim for which there is a remedy
because it does not concern an employment policy or practice which
affects a term, condition or privilege of complainant's employment.
Regarding claim 6, the proper procedure for enforcing or clarifying
a Commission's order is proceeding pursuant to 29 C.F.R. � 1614.503.
Complainant has since proceeded in that manner by filing a petition with
the Commission concerning the payment of moving expenses in EEOC Petition
No. 04A40014, the same claim raised in the instant complaint and decided
by the Commission on April 14, 2004, in EEOC Petition No. 04A40014.
Therefore, claim 6 does not state an independent claim of discrimination.
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
October 20, 2004
__________________
Date
1This case was originally filed against the Department of Justice's
Immigration and Naturalization Service (INS) and this function has
been transferred to the Department of Homeland Security.