0120162315
12-23-2016
Malcom N.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Malcom N.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162315
Agency No. ARSHAFTER16MAR01005
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 20, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13 at the Agency's Installation Management Command (IM-Com)-Pacific facility. Complainant indicated that beginning in April 2010, he had been assigned duties of a GS-14 at IM-Com-Pacific, without compensation at the GS-14 level. Since July 2015, he has been assigned to the Agency's IM-Com-Europe. On February 17, 2016, he learned that his subordinates were temporarily assigned to his position when he left. However, he was not given the similar opportunity to be temporarily promoted to the GS-14 position when he performed the GS-14 duties while at IM-Com-Pacific.
On February 18, 2016, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint. On May 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (51), since April 2010, he was assigned duties of a GS-14 position. However, he was not paid at that higher grade nor did he receive a temporary assignment to that higher graded position. He performed the duties until his assignment at the facility ended on July 13, 2015. He learned, on 17 February 2016, that his former co-workers received temporary promotions at IM-COM-Pacific. However, Complainant indicated that he was not provided with such an opportunity.
The Agency defined the complaint into two separate claims of age discrimination when: 1) on February 17, 2016, Complainant became aware that two former subordinates were temporarily promoted to his former position as a GS-1801-13, and 2) on July 13, 2015, the Supervisor purportedly failed to offer Complainant a temporary promotion to the GS-1801-14. The Agency dismissed claim (1) pursuant 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency indicated that in claim (1), Complainant was not harmed by the temporary assignment of subordinates to his position when he was reassigned. The Agency then dismissed claim (2) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant contacted the EEO Counselor well beyond 45 days from when the Supervisor failed to provide him with a temporary promotion in July 2015. Therefore, the Agency dismissed the complaint as a whole.
This appeal followed. Complainant alleged he was harmed by claim (1) and that he contacted the Agency on February 18, 2016, a day after he learned that the subordinates were provided with temporary promotions. The Agency asked that the Commission affirm its decision and noted that Complainant alleged the same claim before the Merit Systems Protection Board (MSPB).
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency improperly fragmented Complainant's claim of discrimination. A fair reading of the complaint file and formal complaint shows that Complainant alleged discrimination based on age when from April 2010 to July 13, 2015, he was assigned GS-14 duties without being provided with a temporary promotion to the GS-14 level. In support of his claim that he learned of the discrimination in February 2016, Complainant indicated that he only then became aware that subordinates were given his duties and provided temporary promotions to the GS-13 level. As such, we find that there was only one claim raised in Complainant's formal complaint which the Agency identified as claim (2). The claim the Agency defined as claim (1) was merely supporting evidence regarding claim (2). Therefore, we shall only address the dismissal of claim (2) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact.
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.
Complainant asserted that he became aware of the alleged discrimination when, on February 17, 2016, he discovered that his subordinates were assigned his duties and provided with temporary promotions. The Agency argued that Complainant was aware of the duties he was assigned in April 2010, and the failure on the part of the Supervisor to provide Complainant with a temporary promotion in July 2015. The Commission takes administrative notice that Complainant previously raised the Agency's failure to pay him at the GS-14 level with the Office of Special Counsel (OSC) in October 2014, and the Merit Systems Protections Board (MSPB), in MSPB Docket Number SF-3443-15-0318-I-1, (April 15, 2015) (dismissing Complainant's claim for lack of jurisdiction following a decision by OSC). In his appeal to the MSPB, Complainant asserted that for four years, he had been performing the duties of a GS-14 position, but continued to be paid at the GS-13 level. Upon review, we find that Complainant was aware at that the time he was not being paid at the GS-14 level for the GS-14 duties he performed from April 2010 to July 2015. Therefore, his contact of the EEO Counselor on February 18, 2016, was well beyond the 45 day time limit. As such, we conclude that the Agency's dismissal pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
December 23, 2016
__________________
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.
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