01a34890_r
04-02-2004
Enoch R. Cook, III, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Enoch R. Cook, III v. Department of Justice
01A34890
April 2, 2004
.
Enoch R. Cook, III,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A34890
Agency No. B-03-2466
DECISION
Upon review, the Commission finds that the agency's decision dated June
26, 2003, dismissing complainant's complaint for failure to state a
claim, due to untimely EEO Counselor contact and/or raising a matter
that had not been brought to the attention of a Counselor and was not
like or related to a matter that had been brought to the attention
of a Counselor is proper pursuant to 29 C.F.R. � � 1614.107(a)(1) and
(2). The agency defined the complaint as alleging that complainant was
discriminated against when: (1) he was �written up� by management on
December 6, 2002; (2) management denied him a promotion two years ago;
(3) management barged between him and a coworker during a conversation
on January 8, 2003, which he felt was done due to his Union affiliation;
(4) management controverted his workman's compensation claim in August
2001; and, (5) management issued him a Minimally Satisfactory performance
appraisal on April 9, 2003. Complainant has not challenged the agency's
framing of the complaint.
With regard to claims (2) and (4), the record indicates that complainant
contacted an EEO Counselor on January 12, 2003, which was beyond the
45-day time limit set by the regulations. On appeal, complainant does not
present adequate justification to warrant an extension of the applicable
time limit for contacting an EEO Counselor. Thus, the Commission finds
that complainant's EEO Counselor contact with regard to claims (2) and
(4) was untimely.
With regard to claim (1), the agency, undisputed by complainant, indicated
that there was no evidence that complainant received any written reprimand
or any other form of discipline as a result of the alleged incident.
The agency stated that its records indicated that on the day of the
incident, management, after complainant was counseled about his lateness,
issued him a �Confirmation of Conference� memo, which was not considered
a disciplinary document. With regard to claim (3), the Commission finds
that there is no evidence in the record that complainant was harmed with
regard to a term, condition or privilege of his employment as a result
of management's improper interruption. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
With regard to claim (5), the agency stated that complainant did
not bring the alleged matter to his EEO Counselor's attention.
The record indicates that during EEO counseling, complainant raised
claims (1) through (4), including his transfer and working condition,
but not claim (5). Complainant is apparently attempting to amend the
complaint by adding claim (5). The Commission finds that claim (5)
concerning complainant's performance appraisal of April 9, 2003, is
not like or related to the alleged incidents of claims (1) through (4)
and is therefore not a proper amendment. See 29 C.F.R. � 1614.106(d).
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
April 2, 2004
__________________
Date