0120180879
07-13-2018
Santiago S,1 Complainant, v. Gina C. Haspel, Director, Central Intelligence Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Santiago S,1
Complainant,
v.
Gina C. Haspel,
Director,
Central Intelligence Agency,
Agency.
Appeal No. 0120180879
Agency No. 17-25
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 13, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Analyst at the National Geospatial Intelligence Agency (NGA). Complainant was hired by the NGA on November 13, 2016, for a position that required him to perform work duties located in offices at the Agency's Headquarters. For Complainant to perform his assignment, he required "Staff-Like Access" by the Agency. On May 17, 2017, Complainant was informed by the Agency that it was discontinuing the processing of his "Staff-Like Access." Following the Agency's notice, the NGA reassigned Complainant to a Staff Officer Position. On July 24, 2017, Complainant resigned and accepted a position with another entity.
On August 16, 2017, Complainant contacted the EEO Counselor alleging discrimination. On September 13, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of religion (Muslim) when:
1. On May 17, 2017, the Agency notified Complainant that his "Staff-like Access" processing required for his assignment to the NGA within the Agency was discontinued.
2. On July 24, 2017, following the Agency's decision, the NGA removed Complainant from his work area.
3. On August 17, 2017, the NGA constructively discharged Complainant from his employment with the NGA because he was no longer authorized to be in his designated work area located in the Agency and giving him little or no job responsibilities.
The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant was made aware of the Agency's decision regarding his "Staff-Level Access" on May 17, 2017. He did not contact the EEO Counselor until August 16, 2017, beyond the 45-day time limit. The Agency noted that Complainant received "No Fear" training and was made aware of the 45-day time limit. Complainant also stated he waited for the NGA to address the issue before filing his complaint against the Agency regarding claim (1). As such, the Agency dismissed claim (1).
As for claims (2) and (3), the Agency dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that the employment actions alleged were taken by the NGA, not the Agency. Furthermore, during the relevant time, Complainant was an employee of the NGA. The Agency also stated that Complainant failed to raise these claims with the NGA. Accordingly, the Agency determined that Complainant failed to state a claim of discrimination with respect to claims (2) and (3).
This appeal followed. On appeal, Complainant asserted that the events constituted a "continuing violation." As such, Complainant argued that the dismissal of claim (1) was not appropriate. Furthermore, to address the matter as a whole, Complainant asked that the Commission remand claims (2) and (3) to address Complainant's claim of discrimination by the Agency. The Agency asked that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
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 an 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.
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 her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
In the instant case, Complainant has not shown that he was unaware of the time limitation for EEO Counselor contact or otherwise provided grounds for an extension of time. We note that the Supreme Court has held that 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, 536 U.S. 101, 113 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Complainant argued that the events alleged constitute a "continuing violation." Here, however, we find that what Complainant has alleged in claim (1) - notification that the Agency discontinued the processing of his "Staff-Like Access" -- is a discrete act. We note that the action alleged in claim (1) was an action taken by the Agency and the Agency alone. The actions alleged in claims (2) and (3) involved decisions and steps taken by the NGA in response to claim (1). However, claim (1) by itself is separate from those other acts taken by the NGA. We therefore find that the Agency properly dismissed claim (1) for untimely contact with an EEO Counselor.
Failure to State a Claim
We now turn to claims (2) and (3). 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, disabling condition, genetic information, or reprisal. 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). In claims (2) and (3), we note that Complainant alleged discrimination regarding actions taken by NGA, not the Agency. As such, we find that the Agency's dismissal of the complaint 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
July 13, 2018
__________________
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
0120180879
2
0120180879