0120093384
11-19-2009
Anthony L. Brockington, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Anthony L. Brockington,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093384
Agency No. ARYUMA09MAR01276
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 24, 2009, 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 (Black) and age (DOB: January
23, 1943) when, since 2004, complainant has sought an upgrade of his
position from a GS-13 to the GS-14 level. In support of his claim of
discrimination, complainant indicated that his position was converted
to the YC-03 level on February 17, 2008. In addition, on January 30,
2009, complainant was given a copy of a draft position description for
his position from 2004 which was a GS-14 position.
The agency dismissed the complaint finding that complainant failed to
contact the EEO Counselor in a timely manner. The agency noted that
complainant was denied a reclassification in 2004 and his position was
converted to the YC-03 level in February 2008. Complainant's contact on
March 5, 2009, was beyond 45 calendar days from the date of the alleged
discrimination. As such, the agency dismissed the complaint pursuant
to 29 C.F.R. � 1614.107(a)(2).
Complainant appealed. He asserted that he was delayed contacting the EEO
Office because he had tried to resolve the matter with his supervisor
since 2004. Complainant also argued that he became aware in February
2009, that his supervisor had drafted a new position description which
could have been classified at the GS-14 level. Finally, complainant
asked that the agency's dismissal be reversed for the sake of justice,
fairness, and recognition for the proper grade structure.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
Upon review of the record, it is clear that complainant was aware of
the issues concerning his job classification as far back as 2004.
Complainant tried to resolve the matter informally rather than
proceed to the EEO process. It was only after he discovered the draft
position description on January 2009 did he contact the EEO Counselor.
Based on the evidence in the record, complainant was aware of the
alleged discrimination in 2004. Complainant's contact in March 2009
was well beyond the 45 day time limit from when he became aware of the
issue regarding his job classification. Complainant has not provided
sufficient reason to extend the time limit for over 4 years. As such,
we find that the agency's dismissal of the complaint pursuant to 29
C.F.R. �1614.107(a)(2) was appropriate.
Accordingly, we AFFIRM the agency's final decision dismissing the instant
complaint.
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
November 19, 2009
__________________
Date
2
0120093384
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093384