0120090221
02-13-2009
Raymond Chavira, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.
Raymond Chavira,
Complainant,
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120090221
Agency No. 2008-0069-R09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated September 12, 2008, 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.
On May 9, 2008, complainant initiated EEO Counselor contact. Informal
efforts to resolve his concerns were unsuccessful.
On July 10, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination
on the bases of race, national origin, color, and in reprisal for prior
EEO activity when:
1. on February 29, 2008, the Air Division Associate Director made the
following inappropriate comment in front of several co-workers during a
meeting where complainant was making a presentation: "Are you on crack?;"
and
2. on April 17, 2008, complainant was placed on administrative leave
pending an investigation on whether he had disclosed sensitive or
confidential information to an outside agency.
In its September 12, 2008 final decision, the agency dismissed claim 1 on
the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). The agency determined that the alleged discriminatory
event occurred on February 29, 2008 but complainant did not initiate EEO
contact until May 9, 2008 which was beyond the 45-day limitation period.
Regarding claim 2, the agency determined that complainant raised this
claim for the first time when he filed the instant formal complaint.
The agency further determined that this claim has not been previously
brought before an EEO Counselor and are not like or related to matters
for which complainant underwent EEO counseling pursuant to 29 C.F.R. �
1614.107(a)(2).
On appeal, complainant, through his attorney, contends that the agency
improperly dismissed the instant complaint because it was part of a
continuing violation of harassment. Regarding claim 1, complainant
states that despite his supervisor's suggestion to contact the EEO
office, he chose instead to go to his Division Director (DD) "because
he feared that if he made a formal complaint he would face retaliation."
Complainant further states that because DD assured him that the February
29, 2008 incident "would be investigated and resolved and that he would
be contacted about the issue periodically," he did not initiate EEO
contact immediately. Regarding claim 2, complainant states that just
over two weeks after the Air Division Associate Director (AD) reluctantly
apologized for the offensive comment, he was placed on administrative
leave and that it is like and related to the hostile work environment
demonstrated by AD's discriminatory comments.
Claim 1
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 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 Commission notes in his complaint, complainant stated although
his supervisor suggested that he contact the EEO office concerning
the February 29, 2008 incident "I did not since [DD] stated she would
investigate and resolve this matter with [AD]." We are not persuaded
by this argument. Complainant had or should have had, a reasonable
suspicion of unlawful employment discrimination on February 29, 2008.
We find although complainant claims the instant complaint was part of a
continuing violation of harassment, we note that complainant failed to
timely raise any incident of harassment within the 45 day prior to his EEO
Counselor contact. Therefore, we find that complainant failed to provide
sufficient justification for waiving or tolling the time limitation.
The agency's decision to dismiss claim 1 for untimely EEO Counselor
contact was proper.
Claim 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant had
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
The record shows that during EEO counseling for the instant complaint,
complainant only alleged discrimination regarding the AD's inappropriate
comment in front of several co-workers during a meeting in which he was
making a presentation (claim 1). We note in her report, the EEO Counselor
stated that during the initial interview, complainant "also stated that
the instant informal complaint did not include any matters connected with
the Air Division Director's memorandum of April 17, 2008, concerning
an investigation." We further note in the e-mail correspondence dated
August 28, 2008 between the EEO Specialist and a representative of the
Office of General Counsel, the EEO Specialist stated that according
to the EEO Counselor, complainant "with his attorney never mention any
other incident dates other than the March 25, discussion with his 2d line
supervisor who failed to get back to him. On April 17, during the initial
interview they informed the counselor that the memo (investigation issue)
had nothing was not a part of counseling." Claim 2 was not the subject
of counseling with the EEO Counselor. Moreover, there is no indication
in the record that complainant's claim is like or related to the matter
on which complainant received counseling. Therefore, we determine that
claim 2 was properly dismissed under 29 C.F.R. � 1614.107(a)(2).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 13, 2009
__________________
Date
2
0120090221
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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