Andre R. Moore, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionOct 2, 2009
0120080682 (E.E.O.C. Oct. 2, 2009)

0120080682

10-02-2009

Andre R. Moore, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.


Andre R. Moore,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice

(Federal Bureau of Prisons),

Agency.

Appeal No. 0120080682

Agency No. P-2006-0079

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 16, 2007, 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. and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (African-American),

sex (male), age (over 40 years old), and in reprisal for prior protected

EEO activity when the Human Resources Department notified complainant on

July 29, 2005 that he did not qualify for the position of Cook Supervisor,

Vacancy Announcement Number 05-GRE-006.

In a final decision dated October 16, 2007, the agency dismissed

complainant's complaint on the basis that it was initiated by untimely

EEO counselor contact.

On appeal, complainant maintains that he contacted an EEO counselor

within 45 days of the alleged discrimination. Complainant contends that

he had a meeting with the Warden on August 3, 2005 and made six or more

"diligent efforts" thereafter to contact an EEO counselor.

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).

Additionally, the Commission has held that in order to establish

EEO counselor contact, an individual must contact an agency official

logically connected to the EEO process and exhibit an intent to begin

the EEO process. See Allen v. United States Postal Service, EEOC Request

No. 05950933 (July 9, 1996). EEO Counselor contact, for purposes of

tolling the time limit, requires at a minimum that the complainant intends

to pursue EEO counseling when she initiates EEO contact. See Snyder

v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990);

Menard v. Department of the Navy, EEOC Appeal No. 01990626 (January 5,

2001), request for reconsideration denied, EEOC Request No. 05A10279

(May 9, 2001).

In this case, the agency notified complainant that he was not qualified

for a Cook Supervisor position on July 29, 2005. The counselor's report

reveals that complainant did not contact an EEO counselor until October

13, 2005, beyond the 45-day time limit. Complainant maintains that

he discussed the matter with the Warden on August 3, 2005. However,

complainant does not contend that he expressed an intention to initiate

the EEO process during his meeting with the Warden. Complainant further

maintains that he made six or more efforts to contact an EEO counselor

within the time limit. However, complainant did not provide any details

or evidence to substantiate this claim, such as copies of correspondences

or messages sent to the EEO counselor before the time limit expired.

Thus, we find that complainant failed to provide any persuasive evidence

that warrants an extension or waiver of the applicable time limits.

Consequently, we find that the agency properly dismissed complainant's

complaint on the basis that it was initiated by untimely EEO counselor

contact.

Accordingly, the Commission AFFIRMS the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

_10/02/09_________

Date

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0120080682

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080682