0120142310
10-21-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120142310
Agency No. 5X1I14005
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 16, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Reserve Wing Formal Schools Tech at the Agency's Travis Air Force Base in California.
On February 13, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On April 30, 2014, Complainant filed a formal EEO complaint alleging discrimination based on disability.
On May 16, 2014, the Agency issued the instant final decision. Therein, the Agency determined that the formal complaint was comprised of two separate categories of claims. In Claim 1 the Agency determined that the matter was a hostile work environment claim, comprised of thirteen separate events that occurred between December 2011 and October 18, 2013. These thirteen matters included, but were not limited to, the following incidents: Agency refusal/delays in processing paperwork for a "work at home" request; improper processing of a time card resulting in a payment shortage; threats made at a meeting in October 2012; and Complainant being forced to take Leave Without Pay due to actions and comments by an agency official.
In Claim 2, the Agency determined that the following matter was raised:
On or about 9 January 2013, an Agency Captain informed Complainant that he was being detailed to work in the 349 FSS Career Development Section.
The Agency dismissed the formal complaint in its entirety, on the grounds of untimely EEO Counselor contact. Without further elaboration, the Agency determined that the "last alleged discriminatory action occurred on 18 October 2013," so Complainant's initial EEO contact of February 13, 2014, was untimely. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.
A fair reading of the record reflects that none of the alleged discriminatory incidents occurred within forty-five days of Complainant's initial EEO Counselor contact on February 13, 2014. We acknowledge that in his formal complaint, Complainant identifies a later incident than those identified by the Agency, when on "15 Dec 2013, [he] was placed in a new AFSC and moved to the 349 FSS Career Development Office." In a separate portion of the formal complaint form, Complainant identified the last discriminatory event as, again, having occurred on "15 Dec 2013." However, even this later date is more than forty-five days before the initial EEO Counselor contact. Complainant has not presented adequate justification, pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation period beyond forty-five days.
CONCLUSION
Accordingly, the Agency's decision to dismiss the formal complaint on the grounds of untimely EEO Counselor contact 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
October 21, 2014
__________________
Date
2
0120114203
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120142310
6
0120114203