0120160871
03-18-2016
Randolph T.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randolph T.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120160871
Agency No. 64-2015-00228
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 5, 2015, 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 was an applicant for several positions with the Agency. The record indicated that in 2014, Complainant, among other positions, applied for the position of Auditor advertised under Vacancy Announcement Number DOC-OIG-2014-0063/0067 (Auditor position). Complainant interviewed for the position on May 9, 2014. By email dated September 30, 2014, Complainant was informed that he was not selected for the position in question.
On February 20, 2015, Complainant began the informal EEO complaint process alleging discrimination when he was not selected for a variety of positions. At that time, Complainant did not raise the issue of the Auditor position. When he filed his prior EEO complaint on May 15, 2015, for the first time, Complainant informed the EEO office that he believed he had been subjected to discrimination based on the Agency's decision not to select him for the Auditor position. The Agency then processed the claim regarding the Auditor position as a new claim of discrimination. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint regarding the Auditor position.
On September 15, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (White), sex (male), and age (60) when:
1. He was not selected for the position of Auditor advertised under Vacancy Announcement Number DOC-OIG-2014-0063/0067. He indicated that he was more than qualified but he was not given a second interview.
Complainant later indicated that he wished to amend his original compliant to include the following "charges":
2. Intimidation by the Office of Inspector General (OIG) representative; retaliation by OIG staff; abuse of power by individuals within the Human Resources office and OIG staff; and failure to promote equal employment opportunity particularly for older workers at the Agency.
The Agency dismissed claim (1) pursuant to 29 C.F.R. �1614.107(a)(2) for failing to raise the matter in a timely manner. The Agency noted that Complainant was made aware of the Agency's decision regarding the Auditor position by September 30, 2014. Complainant did not raise the issue of the Auditor position to the attention of an EEO Counselor until May 15, 2015, well beyond the 45 day time limit. Therefore, the Agency dismissed claim (1). As to claim (2), the Agency dismissed the matter pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency noted that claim (2) was not related directly to the vacancy at issue and Complainant failed to show that he was specifically aggrieved by the "charges." As such, the Agency dismissed the complaint as a whole.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 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.
As to claim (1), we find that the Agency's dismissal was appropriate. The record indicated that Complainant was informed of the Agency's decision not to select him by September 30, 2014. He waited until May 15, 2015, to raise his claim of discrimination with respect to the Auditor Position. This is well beyond the 45 day time limit. Furthermore, Complainant has not provided any reason or explanation to extend the time limit. Therefore we find that claim (1) was properly dismissed pursuant to 29 C.F.R. �1614.107(a)(2).
As to claim (2), the Agency dismissed the additional "charges" pursuant to 29 C.F.R. �1614.107(a)(1). The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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. 29 C.F.R. �� 1614.103, .106(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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review of the record, we find that Complainant's additional claims are in the nature of a generalized grievance and, therefore, fail to state a claim. Complainant has not alleged that he suffered any personal injury as a result of the matters he alleged. Crandall v. Dep't of Veterans Affairs, EEOC Request No. 05970508 (Sept. 11, 1997); Rodriguez v. Dep't of the Treasury, EEOC Appeal No. 01970736 (Aug. 28, 1997). As such, we find that the Agency's dismissal of claim (2) pursuant to 29 C.F.R. �1614.107(a)(1) 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 (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 tends 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 18, 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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160871
2
0120160871