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