0120102125
08-24-2010
Christopher Stansbury, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Christopher Stansbury,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102125
Agency No. 200J-0328-2010101264
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 24, 2010, dismissing his formal 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.
BACKGROUND
During the period at issue, Complainant was employed as a Rating Veterans Service Representative (RVSR) at the Agency's Veterans Affairs Regional Office in Chicago, Illinois.
On January 5, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On February 18, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination in reprisal for prior protected activity when:
(a) on November 16, 2009, he resigned in lieu of being removed from his RSVR position; and
(b) on October 14, 2009, he was denied the opportunity to sit for the RSVR skill certification skill.
In its March 24, 2010 final decision, the Agency dismissed claims (a) and (b) on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant did not initiate EEO Counselor contact until January 5, 2010, which it found beyond the forty-five (45) day limitation period.
The Agency also dismissed claim (a) on the alternative grounds that Complainant first filed an appeal regarding his resignation in lieu of being removed from his position with the Merit Systems Protection Board (MSPB), pursuant to 29 C.F.R. � 1614.107(a)(4).
On appeal, Complainant, through his attorney, argues that the Agency's final decision should be reversed because his EEO contact was timely; and discrimination in reprisal for prior protected activity was not previously addressed before the MSPB. Specifically, Complainant argues that "[Complainant] did not choose the MSPB as his initial forum to [address] the Agency's reprisal. For that reason, dismissal on the basis that [Complainant] chose the MSPB as his initial forum was improper."
Claim (a)
The record reflects that Complainant filed an appeal with the MSPB on December 17, 2009, regarding his resignation from his RVSR position. Subsequently, on February 18, 2010, Complainant filed the instant EEO complaint claiming in claim (a) that he was discriminated against in reprisal for prior protected activity when he resigned in lieu of being removed from his RVSR position.
Claim (a) was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4), which provides that the Agency shall dismiss a claim that states the same claim that was raised before the MSPB. Complainant did not expressly raise discrimination in his MSPB appeal. However, this issue could have been adjudicated with the MSPB. Therefore, Complainant is precluded from raising this issue in a separate EEO complaint. See Aho v. Department of Agriculture, EEOC Request No. 05860085 (May 22, 1987).
Because we affirm the Agency's dismissal of claim (a) for the reasons stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact).
Claim (b)
The Agency properly dismissed claim (b) on the grounds of untimely EEO Counselor contact. The record reveals that on October 14, 2009, Complainant was denied the opportunity to sit for the RSVR skill certification examination, but did not initiate EEO Counselor contact until January 5, 2010 which was beyond the 45-day limitation period. We note that Complainant, on appeal, did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed claim (b) on the grounds of untimely EEO Counselor contact was proper.
Accordingly, the Agency's dismissal of the instant complaint is AFFIRMED.
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
August 24, 2010
__________________
Date
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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5
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