0120182052
09-06-2018
Barry G.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Barry G.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.
Appeal No. 0120182052
Agency No. AMS201800280
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 29, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Agriculture Commodity Grader, GS-11, at the Agency's Agriculture Marketing service facility in New Orleans, Louisiana.
On January 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), age and reprisal when: (1) on September 27, 2017, he learned he did not receive a rating of Exceeds in any element rating on his 2017 performance appraisal; (2) on an unspecified date, he learned his official place of duty was changed to a location up to 90 miles away; (3) on an unspecified date, he learned that management rejected his travel vouchers; (4) on an unspecified date, management eliminated the possibility of promotions or classification conversion by improperly staffing the New Orleans Field Office; (5) on an unspecified date, he learned the Agency raised the Field Office Manager position from GS-14 to GS-15; (6) on unspecified dates, he was subjected to various incidents of harassment, including but not limited to, the Agency targeting and using discriminatory actions towards Shift Supervisors in the New Orleans field office, and the Agency causing excessive overtime to be utilized by the staff.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS
On January 29, 2018, the Agency issued its final decision dismissing the complaint for untimely EEO counselor contact. The instant appeal followed, postmarked May 20, 2018, which appears to be more than 30 days from the date Complainant would have received the FAD. On appeal, Complainant does not explain the lengthy delay in filing his appeal. He does not indicate when he received the FAD. The FAD was sent to him certified mail, and there is no indication that he did not receive it in the timely manner, and we note it contains the correct address for Complainant. We note also, the FAD informed Complainant of the appropriate time limits for filing his appeal as well as the correct address. As such, we find it likely that the appeal was untimely filed.
However, even assuming the appeal was timely filed, we conclude that the Agency has supported its decision to dismiss the complaint. 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.
In the instant case, Complainant does not allege that he was unaware of the time limits for contacting an EEO counselor. The date of the last discrete act alleged was on September 27, 2017. Complainant did not contact an EEO counselor until December 6, 2017, which is more than 45 days from the date of the last action. On appeal, Complainant basically states that the disputed policies are still in place. Additionally, we note that he appears to assert a generalized grievance that fails to state a claim of discrimination in that he states "all supervisors," apparently without regard to race, color, age or prior EEO activity, were impacted.
Based on these facts, we conclude the Agency's dismissal of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 6, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120182052