0120121633
06-18-2012
Henry L. Stevenson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Henry L. Stevenson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121633
Agency No. DON-11-42158-03949
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 18, 2012, dismissing a formal complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Production Controller, GS-1152-10 at the Agency's Norfolk Naval Shipyard in Portsmouth, Virginia.
On September 21, 2011, Complainant initiated contact with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful. On December 21, 2011, Complainant filed a formal EEO complaint claiming that he was the victim of unlawful employment discrimination on the bases of age and in reprisal for prior protected activity when:
1. On November 15, 2010, he was not selected for the position of Production Controller (Ships), GS-1152-11.
2. On December 15, 2010, he was not selected for the position of Production controller (Ships), GS-1152-11.
On January 18, 2012, the Agency dismissed the formal complaint, pursuant to 29 C.F.R � 1614.107(a)(2), on the grounds of untimely EEO counselor contact. Specifically, the Agency determined that Complainant's initial EEO contact on September 21, 2011, was beyond the 45-day time limitation period set by regulation. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The record discloses that the most recent alleged discriminatory event occurred on January 2, 2011, the effective date of the selections for the subject positions. Despite Complainant's assertions to the contrary, he was aware of his non-selections by no later than the end of January 2011. The record contains an email to Complainant from an Agency official, dated July 9, 2010. Therein, the Agency official informed Complainant that in regard to the subject positions, "due to an error, [Complainant] missed consideration" for the first position. The Agency official informed Complainant that as a consequence, he would be placed on the Norfolk Naval Shipyard Priority Consideration List for a Production Controller position "one time only." In addition, the record contains an email from an Agency official to Complainant, dated January 26, 2011, with the subject identified as "RE: CERT FOR 1152-GS-11." Therein, the Agency official indicated that, "the Cert [priority consideration list] was issued/pulled on 11/18/10. The [selection] action was made effective 1/2/11." Complainant's email response, also on January 26, 2011, stated, "thanks, this is what I needed to know." The record further indicates that Complainant and his union steward met with Agency officials concerning the selection process and why Complainant was not selected. Emails concerning these meetings exist as early as May 2011.
Despite being aware he was not selected in January 2011, Complainant did not initiate contact with an EEO Counselor until September 21, 2011, which is beyond the forty-five (45) day limitation period. We have considered Complainant's appellate arguments, but nevertheless determine that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 18, 2012
__________________
Date
2
0120121633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121633