0120064784
06-12-2007
Eric Gooden, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Eric Gooden,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120064784
Agency No. HS 06-CIS-000583
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 24, 2006, dismissing his 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed, in part, pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact.
On December 6, 2005, complainant initiated contact with an Equal
Employment Opportunity (EEO) Representative, alleging that he was
subjected to discrimination on the bases of race (unspecified) and
reprisal for prior protected EEO activity when the agency failed to extend
his term appointment beyond September 30, 2005 and his health insurance
expired on October 31, 2005 .1 Subsequently, complainant filed a formal
complaint reiterating the above claims and adding that the termination
of his appointment breached a settlement agreement dated June 2, 2005
between him and the agency.
In its July 24, 2006 final decision, the agency dismissed complainant's
complaint for untimely EEO contact. The final decision found that the
adverse action at issue is termination of complainant's term appointment,
which occurred on September 30, 2005, and that his December 6, 2005
initial EEO contact is beyond the 45-day statutory time-frame for
that action. The agency added that the termination of health insurance
benefits is a result of the appointment termination and not the action at
issue. Finally, the agency informed complainant that he needed to contact
the agency EEO office to assert his allegation of settlement breach.
The instant appeal from complainant followed. On appeal, complainant
stated that he did not learn of the alleged discrimination until October
31, 2005, when he met with a union representative, and that he was dealing
with academic and employment deadlines and a family tragedy during the
statutory time-frame.
The record discloses that, in a letter dated September 1, 2005, the agency
informed complainant that his term appointment would expire on September
30, 2005. Further, the record shows that complainant's health insurance
benefit ended on October 30, 2005. Complainant initiated contact with
an EEO Representative on December 6, 2005, which is beyond the forty-five
(45) day limitation period for his employment termination but timely for
his benefit termination. Further, regarding the employment termination,
we find that complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Accordingly, the agency's final decision dismissing
complainant's complaint is AFFIRMED regarding the employment termination
and REVERSED and REMANDED regarding the benefit termination. Finally,
regarding complainant's allegation of settlement breach in his formal
complaint, if complainant wishes to pursue his noncompliance allegation,
he shall contact an agency EEO representative within 15 days of receipt
of this decision and the agency shall process the allegation pursuant
to 29 C.F.R. � 1614.504.
ORDER
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
If complainant wishes to pursue the above-indicated noncompliance
allegation, he shall contact an agency EEO representative within 15
calendar days of receipt of this decision and the agency shall process
the allegation pursuant to 29 C.F.R. � 1614.504.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
June 12, 2007
__________________
Date
1 We note that complainant also alleged the basis of sexual orientation
(unspecified), but this Commission does not have authority to process
complaints on such basis. 29 C.F.R. � 1614.103(a).
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0120064784
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064784