0120100062
04-07-2011
Richard I. Peter, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Richard I. Peter,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100062
Agency No. 096588800742
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dismissing a formal 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked in an Apprentice Program
at the Agency's Fleet Readiness Center Southwest facility in San Diego,
California.
On April 21, 2009, Complainant filed a formal complaint. Therein,
Complainant claimed that the Agency subjected him to discrimination on
the bases of race (Filipino), disability (stress/anxiety disorder),
and age (over 40). In his formal complaint, Complainant defined his
claims as follows:
* "March 2008 given unfair training matrix and tasks not given to other
apprentices in shop, and in fair other experienced senior journeymen in
shop have not completed said matrix and task."
* "To best of my knowledge all applicants are under 40 years of age were
hired and given opportunities to better succeed in career not given lo
older applicants like myself,"
* "Due to these discriminatory actions I believe this contributed to
further accentuate/increase the effect of my Illness of depression,
mental stress and anxiety disorder that the agency has knowledge of;"
* "Being the only Filipino in my apprentice class, I believe I have
not been given an equal opportunity in terms of job assignments and
training afforded other of different races."
The record reveals that on June 17, 2009, the Agency contacted Complainant
by telephone to request further clarification of the issues which he
raised in his formal complaint. Based on Complainant's responses, the
Agency framed Complainant's formal complaint in the following fashion:
1. In March 2008, [Complainant] was given an unfair training matrix and
assigned tasks not given to other apprentices in the shop, despite that
other journeymen in the shop have not completed said matrix and tasks.
2. In May 2008, [Complainant] was not given assignments to become a
component tester
3. In May 2008, [Complainant] was not provided a soldering class in
order to become eligible for work in the electrical area component.
In its final decision dated August 27, 2009, the Agency dismissed the
formal complaint on the grounds of untimely EEO Counselor contact.
The Agency determined that Complainant's initial EEO Counselor contact
was on January 2009, and that the it was beyond the forty-five day
limitation period for making timely contact, with regard to the last
alleged discriminatory incident that occurred on May 2008.
CONTENTIONS ON APPEAL
On appeal, Complainant through his attorney argues that the Agency failed
to acknowledge in its final decision that Complainant also alleged during
EEO Counseling that he was discriminated against when he was notified
that he was demoted to a lower grade. Complainant's attorney points
out that Complainant became aware of the discriminatory demotion when
he reviewed his Leave and Earnings Statements for the pay period ending
December 20, 2008, and thus timely contacted an EEO Counselor within
the 45-day limitation period, on January 9, 2009.
In response, the Agency acknowledges that the issue of the demotion
was indeed raised by Complainant during EEO counseling. However, the
Agency argues that this issue was not addressed in his formal complaint
despite the Agency's request for clarification. A fair reading of the
Agency's discussion reflects that the Agency construed this claim as
having been abandoned.
ANALYSIS AND FINDINGS
As a threshold matter, the Commission determines that Complainant
abandoned the claim, as reflected in the EEO Counselor's Report, regarding
his demotion or change to a lower grade. The record clearly reflects that
this matter was raised during counseling; however, Complainant failed
to include it in his formal complaint despite the Agency's request for
further clarification. The Commission has held that a Complainant's
failure to identify an issue in his complaint that was raised during
EEO counseling constitutes abandonment of the claim. See Remlinger
v. Department of the Navy, EEOC Appeal No. 01933756 (October 1, 1993).
Accordingly, the Commission will not address the demotion/change to a
lower grade issue herein because Complainant abandon it in his formal
complaint.
Upon review of the record, we find that the Agency properly
dismissed Complainant's complaint for untimely EEO Counselor contact.
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 record discloses that the last alleged discriminatory event of
the accepted issues occurred on May 2008, but that Complainant did
not initiate contact with an EEO Counselor until January 9, 2009,
which is beyond the forty-five (45) day limitation period. On appeal,
Complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint
on the grounds of untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
April 7, 2011
__________________
Date
2
0120100062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100062