Earl E. Tobler, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 22, 2009
0120090631 (E.E.O.C. May. 22, 2009)

0120090631

05-22-2009

Earl E. Tobler, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Earl E. Tobler,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120090631

Agency No. FSIS-2008-00513

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 21, 2008, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.

On July 23, 2008, complainant filed an EEO complaint alleging that he

was discriminated against based on his age and disability when he was

terminated on September 17, 2007, as a Supervisory Medical

Officer by the agency for unacceptable conduct.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. The agency found that the alleged discriminatory

incident occurred on September 17, 2007, and that complainant did not

contact an EEO Counselor on that mater until April 3, 2008, which is

beyond the 45-day time limit set by the Regulations.

EEOC Regulation 29 C.F.R � 1614.107 (a) (2) provides that the agency shall

dismiss a complaint that fails comply with the applicable time limits

contained in �� 1614.105, 1614.106, and 1614.204(c). Section 1614.105

(a) (1) provides that an aggrieved person must initiate contact with

a Counselor within 45 days of the date of the matter alleged to be

discriminatory or in the case personnel action, within 45 days of the

effective date of the action.

The record discloses that the alleged discriminatory event occurred in

September 2007, but that complainant did not initiate contact with an EEO

Counselor until April 3, 2008, which is beyond the forty-five (45) day

limitation period. On appeal, complainant has presented no persuasive

arguments or evidence warranting an extension of the time limit for

initiating EEO Counselor contact. Upon review, the Commission finds that

complainant's complaint was properly dismissed pursuant to 29 C.F.R. �

1614.107(a) (2), for untimely EEO Counselor contact. Accordingly, the

agency's final decision dismissing complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (S0408)

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 (Z1008)

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

May 22, 2009

__________________

Date

2

0120090191

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120090631