Brian Sabourin, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionAug 3, 2009
0120091937 (E.E.O.C. Aug. 3, 2009)

0120091937

08-03-2009

Brian Sabourin, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.


Brian Sabourin,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0120091937

Agency No. HHSPSC0907

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 23, 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. Upon review, the Commission finds that complainant's

complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),

due to the untimely filing of the formal complaint. In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of sex (male), color (white), age (over 45 years of age), and reprisal

for prior protected EEO activity when:

1. Complainant was not promoted to GS-12 or GS-13 positions between 1998

and FY 2008;

2. Complainant was not given the requested desk audit in April or May

2007;

3. Accusations of improper meetings with a software vendor on or about

June 20, 2007;

4. On August 16, 2007, an email was sent by management concerning

complainant's receipt of an email containing sensitive employee

information;

5. On or about September 11, 2007, the Agency refused to provide

complainant with information that was, at the time, more than six years

old, which he deemed relevant to substantiate a currently pending EEO

complaint;

6. On or about September 18, 2007, "The Impromptu Meeting requested by DTS

Director", in which you assert the Director grew angry with complainant

when he invoked his right to union representation;

7. On or about September 21, 2007, the Administrative Operations Service

Director told complainant not to send emails outside the chain of command,

in which complainant asserted that he "sent a complaint to government

officials outlining Fraud, Waste and Abuse;"

8. On September 21, 2007, complainant's access to the Parklawn Building

was limited;

9. Complainant's computer program access privileges were limited on

September 28, 2007;

10. Complainant was threatened with a charge of Absence Without Leave

(AWOL) for an early lunch on October 3, 2007;

11. Complainant was subjected to an administrative misconduct

investigation that started around October 16, 2007.

12. On November 7, 2007, complainant was issued a memorandum proposing

a 14-day suspension.

The record discloses that complainant received the notice of right to file

a formal complaint on August 16, 2007. Although the notice indicated that

complainant had to file a formal complaint within fifteen (15) calendar

days of its receipt, complainant did not file his formal complaint until

November 15, 2007, which is beyond the limitation period. On appeal,

complainant claimed that the agency accepted the complaint in November

2007. However, upon review, we find that complainant misunderstood the

receipt of the signed formal complaint as acceptance of the complaint.

Upon review, we find that complainant has not offered any explanation

for the delay in filing the complaint.

CONCLUSION

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed.1

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

August 3, 2009

__________________

Date

1 We note that the agency partially dismissed the complaint in May 2008.

Since the agency dismissed the complaint as a whole, we need not address

the partial dismissal of the complaint.

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0120091937

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091937