0120111108
02-14-2011
Chris Ramlochan, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Chris Ramlochan,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120111108
Agency No. 10-63-02779D
DECISION
Upon review, we find that the Agency's decision dated November 8, 2010,
dismissing Complainant's complaint due to untimely EEO Counselor is
proper pursuant to 29 C.F.R. �1614.107(a)(2). The Agency's decision
dismissing the complaint is AFFIRMED.
BACKGROUND
The Agency defined Complainant's complaint as whether Complainant,
a former Crew Leader Assistant, with the Agency's Pompano Beach Local
Census Office, was discriminated against based on race (not specified),
color (brown), and national origin (East Indian Ancestry) when: (1)
he was terminated on May 11, 2010; and, (2) he was subjected to fraud,
whistleblowing, unpaid wages, defamation and slander.
The Agency stated that Complainant's EEO Counselor contact with regard
to his complaint on July 8, 2010, was beyond the 45-day time limit set
by the regulations.
On appeal, Complainant contends that he did not know about the 45-day
time limit to contact an EEO Counselor. Complainant also contends that he
was actually alleging that he was not paid for the day he was terminated.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
During EEO counseling, the EEO Counselor asked Complainant why his EEO
Counselor contact was beyond the 45-day deadline. Complainant indicated
that he untimely contacted an EEO Counselor when he previously tried
to resolve the alleged matters with management which was unsuccessful.
EEO Counselor's Report, p. 1. Complainant confirms that statement
on appeal. Complainant did not claim prior to the dismissal of the
complaint that he was not aware of the 45-day time limit. We find that
he cannot now claim that he was not aware of the requisite time limit
for the first time on appeal when had been given the opportunity by
the Agency, prior to its dismissal of the complaint, to explain why the
contact was untimely. Complainant's December 3, 2010 Appeal Brief, p. 1.
CONCLUSION
Accordingly, the Agency's decision dismissing Complainant's complaint
is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
2/14/11
__________________
Date
1 We note that since the Agency's dismissal of the complaint is affirmed
due to untimely filing of a formal complaint, we need not address its
dismissal of a portion of the complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1).
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0120111108
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013