Ira L. Frank, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionApr 26, 2002
01992925_r (E.E.O.C. Apr. 26, 2002)

01992925_r

04-26-2002

Ira L. Frank, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Ira L. Frank v. Department of Justice

01992925

April 26, 2002

.

Ira L. Frank,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01992925

Agency No. I-98-0095

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed for untimely EEO Counselor contact, pursuant to 29

C.F.R. � 1614.107(a)(2). In his complaint, dated December 18, 1997,

complainant claimed that he was discriminated against on the basis of sex

(male) when:

During December 1996, complainant was sexually harassed by an agency

employee, for whom complainant was the second line supervisor, when the

agency employee hugged complainant and offered to take him shopping; and

On June 13, 1997, complainant became aware that the agency employee

referenced in claim 1 made false EEO allegations against complainant.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of

discrimination to be brought to the attention of the EEO Counselor within

forty-five (45) days of the date of the claimed discriminatory matter,

or, in the case of a personnel action, within forty-five (45) days of

the effective date of the action. The Commission's regulations, however,

provide that the time limit will be extended when the complainant shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not

have known that the discriminatory matter or personnel action occurred,

that despite due diligence he or she was prevented by circumstances

beyond his or her control from contacting the counselor within the time

limits, or for other reasons considered sufficient by the agency or the

Commission. See 29 C.F.R. � 1614.105(a)(2).

The record discloses that complainant's claims of sexual harassment

occurred in December 1996, and that complainant became aware of the false

accusations being lodged against him on June 13, 1997. The record also

indicates that complainant did not initiate contact with an EEO Counselor

with an intent to pursue the EEO process until July 31, 1997, which is

beyond the forty-five (45) day limitation period. The Commission finds

that complainant should have reasonably suspected discrimination at the

latest, on June 13, 1997, the date that complainant was interviewed by

an EEO Counselor as a witness in connection with a complaint filed by

the agency employee, which was more than 45 days before complainant's

initial contact with an EEO Counselor.

Therefore, 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 26, 2002

__________________

Date