0120162191
09-07-2016
Shelton D.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shelton D.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162191
Agency No. ARHQOSA16FEB01437
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 27, 2016, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Intelligence Analyst at the Agency's Joint-Improved-Threat Defeat Agency in Arlington, Virginia.
On March 22, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On April 26, 2016, Complainant filed the instant formal complaint. Complainant alleged discrimination on the basis of disability when:
a. on February 1, 2016, his supervisor gave him written guidance that differed from his understanding of the oral order and intent of the Division Chief, who was three levels above him;
b. on January 19, 2016, the supervisor gained access to the Defense Civilian Intelligence Personnel System (DCIPS) and forged the acceptance of his performance plan without meeting with him to provide clarity or discuss his objectives;
c. on January 19, 2016, in response to his objection to the "ad hoc" objective placed in his performance plan, the Division Chief verbally directed him to perform a huge task involving the creation of a briefing, which required him to use Google Earth; however, he did not possess the skill level necessary to use this tool;
d. on January 7, 2016, the supervisor failed to meet with him to discuss his 2016 DCIPS Performance Plan, however, he sent his performance plan to him via email and ordered him to acknowledge receipt within 24 hours; and
e. on January 7, 2016, he was not given clear guidance by his supervisor as it related to three objectives in his performance plan, which he believe did not adhere to the DCIPS guidance for supervisors.
In its May 27, 2016 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 22, 2016, which it found to be beyond the 45-day limitation period.
The Agency also dismissed the formal complaint on the alternative grounds of failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), finding that Complainant was not aggrieved. Furthermore, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the alternative grounds that it was untimely filed.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 personnel action, within forty-five (45) days of the effective date of the action.
The alleged discriminatory events occurred between January 7, 2016 and February 1, 2016. However, Complainant did not initiate contact with an EEO Counselor until March 22, 2016, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claims more than 45 days prior to his initial contact with an EEO Counselor. on appeal, Complainant argues that his March 22, 2016 EEO contact was timely. Complainant states that "I first discovered that my supervisor had been abusing my rights as a member of a protected class on March 22, 2016, when [a named supervisor] informed me of the laws and regulations of Equal Employment Opportunity. I had been complaining to another officer in her office that my supervisors were ignoring my reasonable accommodation for ADHD, creating and sustaining a hostile work environment for me. I did not know that this constituted an abuse of EEO until [supervisor] explained my rights on 22 March [2016], and so I believe that the 45-day window should have begun on that day."
In essence, Complainant is arguing that the relevant time limit should be extended because he was not aware that the Agency's actions were in violation of the Rehabilitation Act. However, this appeal is governed by our decision in Wood v. Secretary of the Navy, EEOC Request No. 05901196 (April 10, 1991), which involved a complainant's untimely filing of a constructive discharge claim. The complainant urged waiver of the filing deadline on the ground that he was unaware he had a possible cause of action. Noting the distinction between ignorance of the law and ignorance of relevant facts, the Commission did not excuse the untimely filing in Wood, reasoning that complainant had a duty to undertake reasonable efforts to ascertain his legal rights.
The circumstances here are analogous to those in Wood. Since we see no reason for a different result, the Agency's dismissal decision is AFFIRMED.
Because we affirm the Agency's dismissal for untimely EEO counselor contact, we find it unnecessary to address the alternative dismissal grounds.
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 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 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
September 7, 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.
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