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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