01a55324
01-18-2006
Brian T. Randolph, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Brian T. Randolph v. Department of Veterans Affairs
01A55324
January 18, 2006
.
Brian T. Randolph,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55324
Agency No. 2001-0317-2005101633
DECISION
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 and an additional claim
was properly dismissed for raising a matter that has not been brought
to the attention of an EEO counselor. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(Black) and sex (male) under Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. when:
from November 2004 to February 28, 2005:
White females and males, and Black females were advanced more readily
than Black males; and
he was left behind in the training room;
on January 26, 2005, January 28, 2005, and February 25, 2005:
he was instructed to take hard cases and not ask questions and held to
a higher standard (production/performance) than other employees;
his supervisor raised the performance standards;
he was not informed when changes were made to work units, goals and
objectives;
his supervisor changed, added to or established new performance standards
without advance notice;
he was held accountable for factors that were in the control of management
and his supervisor used a performance approval tool as a disciplinary
tool rather than for employee development;
he was never given a copy of his performance standards;
on January 28, 2005, his reputation and character was damaged because
of his supervisor's discriminatory actions;
he received verbal counseling; and
on February 25, 2005:
he received written counseling; and
his supervisor did not adhere to or refer to an agreement between the
supervisors and employees.
By letter dated May 26, 2005, complainant sought to amend his complaint
to include the claim that he was subjected to discrimination based on
his race (black) and sex (male) when on May 13, 2005, he was terminated
during his probationary period of employment.
The record discloses that complainant received a notice of right to file
a formal complaint on April 11, 2005. 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 May 4, 2005, which is beyond the limitation period.
On appeal, complainant has not offered adequate justification to warrant
an extension of the time limit for filing the complaint. Complainant
merely argued that a postal error was made concerning the address to which
his complaint was sent in St. Petersburg, Florida, and that the Postal
Service returned his formal complaint to him. However, he failed to show
any evidence to support this allegation. Accordingly, we find that the
agency's dismissal for untimely filing of the formal complaint is proper.
Further, with regard to the additional claim about his termination, we
find that the agency properly dismissed that claim for raising a matter
that has not been brought to the attention of an EEO counselor and is not
like or related to a matter on which complainant has received counseling.
Complainant is advised to contact an EEO counselor regarding this matter
if he has not done so already.
Therefore, after careful review of the record, the agency's dismissing
complainant's complaint was proper and is AFFIRMED for the reasons set
forth herein.
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
January 18, 2006
__________________
Date