0120093274
01-15-2010
Carlnell Verrette, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Carlnell Verrette,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120093274
Agency No. 9D1S09008
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 29, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African American), sex (male), and reprisal for
prior protected EEO activity under a statute that is unspecified in the
record when:
1. On June 24, 2008, a coworker (CW: Caucasian) said to complainant
"I don't give a fuck about you, I don't give a fuck about this job,
and I don't give a fuck about going to jail, I will put your ass in a
body bag";
2. On June 27, 2008, the Labor Relations Officer (LRO) blamed complainant
for the June 24 incident;
3. On July 2, 2008, a management official (RMO1) told complainant that
he agency could not file charges against CW because of a conflict of
interest and that complainant would have to file charges with the local
Police Department;
4. On July 31, 2008, LRO hid CW in another room during a meeting with
the purpose of forcing a meeting between complainant and CW;
5. On or about August 9, 2008, another management official (RMO2) told
complainant that he was going to retain CW as an employee;
6. On or about August 9, 2008, RMO2 said to complainant "I don't know
about any back alley drug dealer deals that were made with you but either
you are ready to come back to work at full status or not";
7. On August 26, 2008, RMO2 insisted that complainant return to work
with CW and just put the incident behind him;
8. On August 26, 2008, RMO2 told complainant he would have fired him if
he had left his post; and
9. On August 29, 2008, management switched complainant's shift to nights.
The agency dismissed the claim for untimely EEO counselor contact.
The record shows that the most recent alleged discriminatory incident
occurred on August 29, 2008 but complainant did not contact an
EEO counselor until December 29, 2008, which is beyond the 45-day
regulatory limit. The Supreme Court has held that a complainant
alleging a hostile work environment will not be time barred if all
acts constituting the claim are part of the same unlawful practice
and at least one act falls within the filing period. See National
Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002).
However while complainant argues on appeal that "acts of hostility
were ongoing through December 2008," Complainant's Appeal Brief, p. 8,
complainant has not identified any specific incident after August 29,
2008 or any incident within the filing period. On appeal, complainant
has presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. Accordingly, the
agency's final decision dismissing complainant's complaint is affirmed.
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
January 15, 2010
__________________
Date
2
0120093274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120093274