0120160239
01-21-2016
Clifford L.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clifford L.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120160239
Agency No. 15-56-68
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 9, 2015, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for an Administrative Program Specialist position at the United States Patent and Trademark Office (USPTO). The record indicated that prior to his application for a position with the Agency, Complainant was an administrative specialist for the Department of Homeland Security. Complainant was selected for the position with the Agency. However, on November 13, 2014, the Agency's Office of Human Resources rescinded Complainant's offer of employment.
On December 16, 2014, Complainant filed a claim under the Federal Tort Claims Act (FTCA). On June 16, 2015, the Agency denied Complainant's FTCA claim. On June 25, 2015, Complainant contacted the Agency's EEO office alleging discrimination. When the matter was not resolved informally, on September 1, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and disability2 when, on November 13, 2014, the Agency rescinded Complainant's offer of employment.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failure to initiate contact with the EEO Counselor within 45 days of the rescission of the offer of employment. The Agency noted that Complainant requested waiver of the time limit based on his pursuit of his FTCA claim with the Agency. However, the Agency determined that pursuing another forum for his complaint was not a sufficient reason to toll the time for Complainant to pursue his EEO complaint. As such, the Agency dismissed the matter pursuant to 29 C.F.R. �1614.107(a)(2). This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, Complainant clearly was aware of the Agency's action in November 2014. Rather than pursuing the matter through the EEO process, Complainant chose to raise a claim that the Agency violated the FTCA. It was only after his FTCA claim was denied that, in June 2015, Complainant contacted the EEO Counselor. Pursuing this other option does not toll the time limit for Complainant to initiate the EEO process. See Snead v. Pension Benefit Guaranty Corp., EEOC Appeal No. 01964068 (February 12, 1997) (upholding the Agency's dismissal of a complaint where the Complainant was considering, among other forums, to file a tort claim). As such, we find that Complainant failed to contact the EEO Counselor in a timely manner and that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that the Agency's final decisions included the bases of sex and color which were not marked on Complainant's formal complaint.
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