0520090212
02-25-2009
Brandon M. Keene, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Brandon M. Keene,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Request No. 0520090212
Appeal No. 0120083910
Agency No. 080017801471
DENIAL
Complainant timely requested reconsideration of the decision in Brandon
M. Keene v. Department of the Navy, EEOC Appeal No. 0120083910 (December
22, 2008). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In his underlying complaint, complainant alleged that he was subjected to
unlawful discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq,. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., on the
bases of his race (Asian), disability (Bipolar Disorder), and in reprisal
for prior protected EEO activity when: (1) between October 17, 2006 and
December 18, 2006, he was subjected to a hostile work environment; and
(2) on or about December 18, 2006, he was coerced into resigning. In its
final decision, the agency dismissed complainant's complaint, pursuant
to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Specifically, the agency found that complainant knew or should have
known that he had been subjected to discrimination on March 22, 2007,
but complainant did not contact an EEO Counselor until April 24, 2008.
On appeal, the Commission affirmed the agency's dismissal of the instant
complaint.
In his request for reconsideration, complainant's representative argues
that complainant was not aware of his mental disability until November
2007, and therefore could not have suspected that he had been subjected to
unlawful disability discrimination until that time. We find, however,
that even assuming that argument to be true, complainant's April 24,
2008 EEO Counselor contact was still beyond the 45-day time limit
set out in the regulations. Accordingly, after reconsidering the
previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to DENY the request. The decision
in EEOC Appeal No. 0120083910 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
February 25, 2009
Date
2
0520090212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520090212