01A60953
04-18-2006
Gerald Pruitt, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Gerald Pruitt,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A60953
Hearing No. 140-2004-00218X
Agency No. 020302
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 10, 2005, which affirmed an EEOC Administrative
Judge's (AJ) decision 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. 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. In his complaint,
complainant alleged that he was subjected to discrimination on the bases of
race (Caucasian), sex (male), disability (fibromyalgia), age (D.O.B.
09/06/48), and reprisal for prior protected EEO activity when:
1. he was subjected to various incidents of harassment between
March 9, 1999 and March 10, 2001.
The record discloses that the most recent alleged discriminatory event
occurred on March 10, 2001, but complainant did not initiate contact with
an EEO Counselor until October 3, 2001, which is beyond the forty-five (45)
day limitation period. Complainant maintains that he filed a mixed case
appeal with the Merit Systems Protection Board (MSPB) regarding the issues
on appeal herein, and that he contacted an EEO counselor within 45 days
after receiving a decision from the MSPB dismissing his appeal for lack of
jurisdiction. According to the regulations, the date an appeal is filed
with the MSPB shall be deemed to be the date of initial contact with an EEO
Counselor. 29 C.F.R. � 1614.302(b). The record reveals that complainant's
MSPB appeal is dated May 18, 2001. Thus complainant's MSPB filing 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. Accordingly, the
agency's final decision dismissing complainant's complaint is 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 18, 2006
__________________
Date