0120114111
02-09-2012
David D. Diamond, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
David D. Diamond,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120114111
Agency No. 11-68322-02458
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated July 1, 2011, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. and Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
a former contractor and an applicant for a position at the Agency’s
Naval Education and Training Development and Technology Center facility
in Pensacola, Florida. The record indicated that an Agency Official
(Agency Official 1) chose not to extend Complainant’s contract with the
Agency in August 2006. At that time, Complainant applied for but was not
selected for a Personnel Psychologist position by Agency Official 1 and
another Agency Official (Agency Official 2). Following notification of
the non-selection, Complainant was contacted by Agency Official 1 via
email and asked if he was interested in a term Personnel Psychologist
position. Complainant never heard from Agency Official 1 or 2 about
the last position.
In March 2011, Complainant met with a former co-worker (Co-worker)
who asked Complainant to be a witness for his EEO complaint against
the Agency alleging “favoritism” on the part of Agency Official 1
and Agency Official 2. The Co-worker suggested that Complainant’s
application was never reviewed by Agency Official 1 or Agency Official 2.
Believing that he was subjected to discrimination, Complainant contacted
the EEO Counselor on May 5, 2011. When the matter could not be resolved
informally, Complainant was issued a Notice of Right to File a Formal
Complaint. On June 21, 2011, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases
of disability (physical) and sex (male) when:
1. Agency Official 1 recommended not to extend Complainant’s contract
in August 2006;
2. Agency Official 1 and Agency Official 2 chose not to select Complainant
for a term Personnel Psychologist position in August 2006; and
3. Agency Official 1 did not refer Complainant for consideration for
placement into a term Personnel Psychologist position in October 2006.
The Agency dismissed the complaint for untimely EEO counselor contact
pursuant to 29 C.F.R. §1614.107(a)(2). The Agency indicated that the
events alleged occurred in 2006 while Complainant made EEO Counselor
contact in May 2011, well beyond the 45 day time limit. The Agency found
that Complainant failed to provide any explanation for an extension of
the 45 day time limit. As such, the Agency dismissed the complaint.
Complainant appealed asserting that the only matter he raised in his
formal complaint involved claim (2), namely the decision by Agency
Official 1 and Agency Official 2 not to select Complainant for the term
Personnel Psychologist position in August 2006. Complainant also noted
through his representative that he felt that favoritism occurred in the
workplace while he was a contractor working with Agency Official 1 and
Agency Official 2, he was not aware that it occurred in the specific
event raised in claim (2).
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.
As noted on appeal, Complainant only alleged a claim of discrimination
when Agency Official 1 and Agency Official 2 chose not to select
Complainant for a term Personnel Psychologist position in August 2006.
Upon review of the record, we find that Complainant has not provided
sufficient justification to extend the time limit for contacting an EEO
Counselor for over four years. Further, Complainant indicated on appeal
that he was aware that favoritism occurred in the workplace when he was
employed with the Agency and worked with Agency Official 1 and Agency
Official 2. However, it was not until 2011 that Complainant contacted
the EEO Counselor to raise his claim of discrimination. Therefore,
we find that the Agency’s dismissal of the complaint was appropriate
for untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(a)(2).
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 (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
February 9, 2012
__________________
Date
2
0120114111
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114111