01A31054_r
12-01-2003
Anthony A. Smith, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Anthony A. Smith, Jr. v. Department of Veterans Affairs
01A31054
December 1, 2003
.
Anthony A. Smith, Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31054
Agency No. 200O-0640-2002103699
DECISION
Complainant appeals to the Commission from the agency's November 26,
2002 decision dismissing complainant's complaint. Complainant alleges
discrimination on the bases of national origin, disability, race, color,
age and reprisal when, on October 19, 1998, he was removed from employment
as a VA Police Officer, GS-083-6. The agency dismissed complainant's
complaint for stating the same claim that is pending before or that
has been decided by the Commission or agency pursuant to 29 C.F.R. �
1614.107(a)(1). The agency also dismissed the complaint for untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
Complainant first contacted an EEO Counselor on December 4, 1998,
regarding the October 19, 1998 removal. Although complainant subsequently
received a notice of right to file a formal complaint, including the
requisite time limit to file a formal complaint, on January 14, 1999,
he did not file his formal complaint at that time. On July 18, 2002,
complainant again contacted an EEO Counselor with regard to the same
matter. Upon review, the Commission finds that complainant's initial EEO
Counselor contact on December 4, 1998, was beyond the requisite time limit
after the October 19, 1998 incident, the effective date of his removal.
On appeal, complainant fails to present adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor.
The Commission also finds that complainant abandoned his complaint
from further processing when he did not file his complaint after his
receipt of a notice of final interview on January 14, 1999. On appeal,
complainant asserts that he did not file a formal complaint previously in
1999, because he "was awaiting responses from the various governmental
agencies that he had contacted with regards to this unfortunate matter.
Therefore, it was his belief, that inasmuch as the matter was in the
hands of other governmental agencies for review and consideration,
that upon receipt of their individual decision(s), that [he] would then
be able to file formally." However, the Commission finds that since
complainant clearly had a notice of the requisite time limit to file
his formal complaint, his contentions fail to warrant an extension of
the applicable time limit for filing the complaint. Furthermore, the
Commission notes that complainant's subsequent EEO contact on July 18,
2002, does not revive his already abandoned complaint.
Accordingly, the agency's decision is hereby 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
December 1, 2003
__________________
Date