01a55983
08-18-2006
Neal A. Reinemann,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A55983
Agency No. 9X1M05014
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 14, 2005, 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. In his
complaint, complainant alleged that he was subjected to discrimination on
the bases of age (D.O.B. 01/17/46) and reprisal for prior protected EEO
activity when: (1) his security clearance was revoked; (2) his removal
was proposed; and (3) he was subjected to a hostile work environment
since 1991.
The record reflects that, on September 2, 2005, an EEOC Administrative
Judge (AJ) issued an Order of Dismissal on the above-stated claims. She
found that claim (1) was untimely pursuant to 29 C.F.R. � 1614.107(a)(2),
because complainant's security clearance was revoked on January 13, 2003,
but he did not make his initial EEO contact until August 17, 2003, more
than 45 days after the incident. 29 C.F.R. �� 1614.105(a)(1), .107(a)(2).
With respect to claim (2), she dismissed the proposed removal pursuant
to 29 C.F.R. � 1614.107(a)(5), which requires dismissal of a proposal to
take a personal action. She noted that complainant appealed his actual
removal to the Merit Systems Protection Board (MSPB) in a mixed case
appeal. Finally, to the extent claim (3), an allegation of hostile work
environment, was related to complainant's untimely claim of revocation
of his security clearance, she found that complainant failed to assert a
timely adverse action upon which a continuing violation of hostile work
environment could be based. 29 C.F.R. �� 1614.105(a)(1), .107(a)(2).
The agency fully implemented the AJ's decision.
On appeal, complainant, through counsel, asserts that the agency provided
him with the official proposal to remove for failure to maintain security
clearance on August 21, 2003, and that the letter regarding his security
clearance being revoked was not given to him until August 12, 2003,
rather than the June 6, 2003 date appearing on the letter. In light of
these dates, he maintains that his EEO Counselor contact was timely as
to claim (1). Further, with respect to the January 22, 2003 date, which
the AJ cites as the notification of revocation of security clearance,
complainant argues that the notification was tentative, pending his
appeal to the Defense Office of Hearing and Appeals (DOHA). As such,
he argues that his hostile work environment claim is also timely, and he
describes the ongoing reprisal and harassment the agency has allegedly
created since 1991. Finally, he maintains that, because documentation
included in the DOHA's investigation was not made known to him, he was
unaware of numerous issues and false statements against him.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint or a portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved
person is required to 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. See 29 C.F.R. � 1614.105(a)(1). 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 further provide for extensions to the time limit when
the individual shows that he or she was not notified of the time limits
and was not otherwise aware of them, that he or she did not know and
reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting
the Counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission. 29 C.F.R. � 1614.105(a)(2).
In the present case, we agree with the AJ's finding that complainant
failed to initiate timely EEO Counselor contact as to claim (1).
The record reflects that on January 13, 2003, complainant's security
clearance was revoked, and he signed a dated letter of receipt on
January 22, 2003. Although he argues that the security clearance was
only tentatively revoked, pending a decision by DOHA, we find that the
relevant date is in fact January 13, 2003, when he became aware of the
revocation, as opposed to when the DOHA made its ultimate decision.
Complainant also argues that he was unaware of numerous issues and
false statements against him. However, he does not provide a date
on which he began to form a "reasonable suspicion" of discrimination,
and without more information, we cannot find that his knowledge of the
false statements trigged his suspicion of discrimination. Accordingly,
we find that claim (1) was properly dismissed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides 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. Here, claim (2) involves a proposed removal, and thus
must be dismissed.1 Accordingly, we affirm the dismissal of claim (2).
Finally, with respect to claim (3), a complainant alleging a hostile
work environment will not be time barred if all acts constituting
the claim are part of the same unlawful practice and at least one
act falls within the filing period. See National Railroad Passenger
Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). In the present case,
however, complainant failed to assert a timely adverse action upon
which a continuing violation of hostile work environment could be based.
Accordingly, claim (3) was also properly dismissed.
After a careful review of the record, the Commission affirms the agency's
final order implementing the AJ's dismissal.
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
___8-18-06_______________
Date
1 Complainant is reminded that, to the extent he filed a mixed case
appeal with the MSPB, and the MSPB issues a final decision, he may
petition the EEOC to consider that decision. 29 C.F.R. � 1614.303.
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01A55983
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A55983