0120142870
03-09-2016
Merle J.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Merle J.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 0120142870
Hearing No. 551-2014-00037X
Agency No. DOIBOR130068
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 9, 2014, 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. and 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 Security Officer at the Agency's Grand Coulee Power Office facility in Grand Coulee, Washington. On February 2, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), age (50), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On or about September 3, 2012, Complainant's duties were taken away, he was disarmed, transferred to another workplace, his telephone was taken away, and his hours were reduced.
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On June 19, 2014, the AJ issued a decision dismissing the claim finding that Complainant's EEO Counselor contact was untimely. In a Final Order dated July 9, 2014, the Agency adopted the AJ's Decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The AJ found that Complainant learned of the Agency's action on or about September 3, 2012 but did not contact a Counselor until November 23, 2012, which is beyond the 45-day regulatory limit. Complainant argued that it was not until November 19, 2012, after speaking with another employee, that he developed "reasonable suspicion" that the Agency's action was discriminatory. The AJ found, however, that Complainant stated that he confronted his Supervisor on September 27, 2012 about being singled out because he filed an earlier EEO complaint. See Report of Investigation (ROI), EEO Counselor's Report, Attachment L. Thus in order to be timely, Complainant should have contacted a Counselor within 45-days of September 27, 2012, or by November 11, 2012. The AJ further found that Complainant knew of the 45-day time limit from his earlier EEO Complaint, and further, that Complainant had constructive knowledge of the time periods because EEO posters that include the relevant time periods for contacting a Counselor are on display at his workplace. See ROI, Attachment F. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Final Order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
March 9, 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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