01a03597
08-16-2000
Ronnie J. Shaw, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Ronnie J. Shaw v. Department of Transportation
01A03597
August 16, 2000
.
Ronnie J. Shaw,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03597
Agency No. 5-00-5043
DECISION
Upon review, the Commission finds that the agency's decision dated March
24, 2000, dismissing complainant's complaint due to untimely EEO Counselor
contact, for failure to state a claim, and/or as moot is proper pursuant
to the regulations set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. ���
1614.107(a)(1), (2), and (5)).<1> In his complaint, complainant alleged
that: (1) in July 1998, he was given a letter of warning for using an en
route inspection for personal travel and in October 1998, he was suspended
for 3 days for returning home over the weekend during a conference; (2)
he received a counseling letter, which was subsequently withdrawn, from
his supervisor stating that he had kept a parking pass after the allotted
time; and (3) he was questioned about his wife's identification badge,
which was dropped by his wife, who was a contractor with the agency.
Complainant contacted an EEO Counselor with regard to claim (1)
on December 21, 1999, which was beyond the 45-day time limitation.
Complainant indicated that he timely contacted an EEO Counselor after he
learned that his coworker, who also used an en route inspection without
first obtaining an approved itinerary, received no adverse action for
his en route. The Commission has adopted a �reasonable suspicion�
standard (as opposed to a �supportive facts� standard) to determine
when the limitation period is triggered under the EEOC Regulations.
See 29 C.F.R. � 1614.105(a)(2); Ball v. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is not
triggered until a complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
have become apparent. The record contains complainant's letter dated
November 17, 1998, which was addressed to his supervisor, concerning
claim (1). Therein, complainant indicated that he was improperly issued
the letter of warning and his 5-day suspension, which was subsequently
reduced to a 3-day suspension. Specifically, complainant stated that
other coworkers who also conducted inappropriate en route inspections
received only letters of warning, and not suspensions; thus, his
suspension should be reduced to a letter of warning. Complainant also
stated that he was severely disciplined due to �some underlying reasons
(racial or personal).� After a review of this letter, the Commission
finds that complainant clearly suspected discrimination with regard to the
alleged actions as early as November 17, 1998. Thus, the Commission finds
that complainant failed to provide adequate justification to warrant an
extension of the time limit for initiating EEO contact with regard to
claim (1).
With regard to claim (2), complainant clearly indicated that the
alleged counseling letter was subsequently withdrawn after he provided
proof from the sign-out register that he in fact returned the parking
pass the same day. Upon review, the Commission finds that there is no
reasonable expectation that the alleged violation will recur, and the
interim relief has completely and irrevocably eradicated the effects
of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625
(1979). Thus, the Commission finds that claim (2) is moot.
With regard to claim (3), the Commission finds that it concerns agency
managerial officials' questioning and the manner thereof concerning
complainant's wife's badge which was found on the agency's premises. The
Commission has consistently held that a remark or comment unaccompanied
by concrete action is not a direct and personal deprivation sufficient
to render an individual aggrieved for the purposes of Title VII.
Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995). There is
no evidence in the record that complainant was subsequently subjected to
an adverse action as a result of the alleged questioning. Furthermore,
the Commission finds that the questioning does not in and of itself
constitute an actionable claim. Thus, the Commission finds that claim
(3) fails to state a claim within the purview of the regulations.
Accordingly, the agency's final decision is AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 16, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2It is noted that although the agency dismissed claim (1) on the
alternative grounds of raising the same matter in a grievance procedure,
the Commission needs not address such since the dismissal is affirmed
due to untimely EEO Counselor contact.