01a50855_r
04-07-2006
Terrence L. Miller, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Reclamation), Agency.
Terrence L. Miller v. Department of the Interior
01A50855
April 7, 2006
.
Terrence L. Miller,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Reclamation),
Agency.
Appeal No. 01A50855
Agency No. WBR-03-030
Hearing No. 380-2004-00172X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
During the relevant time, complainant was employed as a hydro-maintenance
man Supervisor II at the agency's Grand Coulee Power Plant, Grand
Coulee, Washington. On February 28, 2003, complainant initiated EEO
Counselor contact; and subsequently filed a formal EEO complaint under
the captioned agency number (Agency No. WBR-03-030), on May 27, 2003.
Complainant amended the complaint on November 9, 2003. Therein,
complainant claimed hostile work environment harassment based on age
(D.O.B. 4/5/47) and in reprisal for prior EEO activity.
On January 26, 2004, the agency issued a partial dismissal. Therein,
the agency determined that the instant complaint was comprised of three
claims that were identified as follows:
(1) the agency did not follow Office of Personnel Management (OPM)
regulations found at 5 C.F.R. � 532 while negotiating complainant's wage
rate for the years 2001-02, 2002-03, and 2003-04;
(2) management improperly denied opportunities and/or compensation for
Administrative Overtime and Graveyard Shift, thus impacting wages and
retirement; and
(3) complainant was subjected to a hostile work environment.
The agency accepted claims (1) and (3) for investigation. The agency
dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds
of untimely EEO Counselor contact.
On February 24, 2004, the agency issued a second partial dismissal,
amending its January 26, 2004 partial dismissal. The agency accepted
claim (3) for investigation. However, the agency now dismissed claim (1)
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency determined that claim (1) was not within the
jurisdiction of the Commission. The agency further stated that any
claims relating to pay issues governed by bargaining units are remedied
through appeal under the Prevailing Rate System Act of 1972.<1>
The agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2), on
the grounds of untimely EEO Counselor contact. The agency determined that
complainant's initial EEO Counselor contact occurred on February 28, 2003,
which it found to be beyond the 45-day limitation period. The agency
further determined that complainant had or should have had reasonable
suspicion of unlawful employment discrimination as early as July 22,
2002 when he determined that he had been improperly denied opportunities
and/or compensation for Administrative Overtime and Graveyard Shift,
thus impacting wages and retirement. The agency determined that the
record reflects that the denial of opportunities and/or compensation for
Administrative Overtime and Graveyard Shift occurred as early as July 22,
2002 which was well beyond complainant's February 2003 EEO contact.
At the conclusion of the investigation of claim (3), complainant received
a copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
In his decision, regarding claim (3), the AJ found that complainant
failed to establish that he was subjected to a hostile work environment
when a comment was purportedly made by a Power Manager at a meeting of
management and union officials on April 8, 2002, causing operators to
joke about complainant being ineffective. Specifically, the AJ found
that the alleged harassment was not sufficiently severe or pervasive to
create a hostile environment.
The record reflects that the Power Manager stated that he could
not confirm what was discussed during the April 8, 2002 meeting with
management and union officials. With respect to complainant's assertion
that paragraph 4 of the minutes of the April 8, 2002 meeting indicated
that he was subjected to age and reprisal discrimination, the Power
Manager stated "I do not read paragraph 4 to have any relationship to
either age discrimination or reprisal." The Power Manager stated that
there was no reference to complainant in paragraph 4 of the minutes.
Furthermore, the Power Manager denied subjecting complainant to a hostile
work environment.
On October 5, 2004, the agency issued a final action implementing the
AJ's finding of no discrimination concerning claim (3). The agency's
final action is the subject of the instant appeal, filed by complainant
on November 6, 2004.
The Commission notes that while this matter has been pending on appeal,
the agency issued a final decision, on September 30, 2005. Therein,
the agency stated that it was dismissing the captioned complaint on
the grounds that it stated the same claim that was previously decided.
The agency also denied complainant's request that the agency notify him
of the right to contact an EEO Counselor and file a formal complaint.
On appeal from the September 30, 2005 final decision, the Commission
noted that complainant had filed a separate appeal concerning Agency
No. WBR-03-030 on November 6, 2004. The Commission noted that this
appeal was docketed as Appeal No. 01A50855 (the captioned appeal).
The Commission noted that the captioned appeal was pending before the
Commission, and that the agency therefore had no authority to dismiss
Agency No. WBR-03-030. The Commission stated that to the extent that
the agency purported to do so in its September 30, 2005 final decision,
that decision was vacated. Miller v. Department of the Interior, EEOC
Appeal No. 01A60926 (March 3, 2006).<2>
Claim (3)
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
The Commission agrees with the determination of the AJ that the incident
of harassment identified by complainant was neither sufficiently pervasive
or severe to create a hostile environment.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination concerning claim (3) is AFFIRMED.
Claim (1)
Complainant claimed that he was discriminated against on the bases of
age and prior protected activity when the agency did not follow OPM
regulations found at 5 C.F.R. � 532 while negotiating complainant's wage
rate for the years 2001-02, 2002-03, and 2003-04. In its February 24,
2004 partial dismissal, the agency dismissed claim (1) pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. We find that the
matter raised in this claim is beyond the jurisdiction of the Commission.
A review of the record reflects that the matter raised in claim (1)
relates to a purported adverse pay conversion. We find that this
matter is more properly pursued through the appeals process within the
Prevailing Pay System Act of 1972. Therefore, we find that the agency
properly dismissed claim (1) for failure to state a claim.
Claim (2)
Complainant claimed that he was discriminated against on the bases of age
and in reprisal for prior protected activity when management improperly
denied opportunities and/or compensation for Administrative Overtime and
Graveyard Shift, thereby causing an impact upon wages and retirement.
In its February 24, 2004 partial dismissal, the agency dismissed claim
(2) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO
Counselor contact. Specifically, the agency determined that complainant
had, or should have had, a reasonable suspicion of unlawful employment
discrimination as early as July 22, 2002.
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 contains a copy of a May 28, 2003 letter prepared by OPM.
Therein OPM indicated that it had received a �compensation claim�
from complainant on July 22, 2002, and that complainant had requested
a determination regarding administrative overtime for hours in excess
of 40 hours in an administrative workweek. The Commission determines
that there is sufficient evidence of record supporting a finding that
complainant had, or should have had, a reasonable suspicion of unlawful
employment discrimination regarding the matter identified in claim (2)
as July 22, 2002, but that complainant did not initiate contact with an
EEO Counselor until February 28, 2003, which was beyond the forty-five
(45) day limitation period.
The Commission has found that because the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken vs. United States Postal Service, EEOC Request No. 0590065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
at the time of the alleged discriminatory event, and that he should
have contacted the EEO office within forty-five days. Complainant has
failed to provide sufficient justification for extending or tolling the
time limitation. Therefore, we find that the agency properly dismissed
the instant complaint for untimely EEO Counselor contact.
Accordingly, the agency's dismissal of claim (1) for failure to state a
claim, and claim (2) on the grounds of untimely EEO Counselor contact
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
April 7, 2006
__________________
Date
1The Prevailing Rate System Act of 1972 is
codified at 5 U.S.C. � 5341 - 5349, and is commonly referred to as the
prevailing rate statute. Section 5341 provides that the general policy
of the prevailing rate statute is that the rates of pay of prevailing
rate employees are to be fixed and adjusted from time to time, as
nearly as consistent with the public interest, in accordance with the
prevailing rates paid for comparable work in the local area by private
sector employees. Under Section 5342, the OPM is responsible for defining
geographical wage areas and for designating a lead agency for each area.
Lead agencies are responsible for conducting wage surveys, analyzing wage
survey date, and developing and establishing appropriate wage schedules
and rates for prevailing rate employees.
2The Commission further noted that in complainant's appeal from the
September 30, 2005 final agency decision, complainant noted that he also
filed a �mixed case appeal� with the Merit Systems Protection Board (MSPB)
on November 9, 2004, wherein he claimed constructive discharge based on
age and in reprisal for prior protected activity. The Commission noted
that on August 3, 2005, the MSPB's decision dismissing the appeal on
jurisdictional grounds became final; and that complainant thereafter
requested that the agency notify him of the right to contact an EEO
Counselor. The Commission noted that once the MSPB determines that
it has no jurisdiction, the matter is no longer �mixed,� and as such,
the agency is required to begin processing it as a �non-mixed� matter.
The Commission found that the agency failed to do so. The Commission
noted that while a claim of hostile work environment and a claim of
constructive discharge may involve identical incidents, the two claims
are not the same within the meaning of 29 C.F.R. � 1614.107(a)(1).
The Commission therefore ordered the agency to provide complainant with
written notice of his right to contact an EEO Counselor on the issue of
constructive discharge.