07A40092_r
08-17-2004
James G. McDonald, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
James G. McDonald v. Department of Agriculture
07A40092
August 17, 2004
.
James G. McDonald,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 07A40092
Agency No. 010800
Hearing No. 100-2004-00044X
DECISION
Complainant initiated contact with the agency's EEO Office on June 6,
2001. On September 21, 2001, complainant filed a formal EEO complaint
wherein he claimed that he was discriminated against on the bases of
his race (White), sex (male), age (dob 2/15/45), and in retaliation for
his previous EEO activity under Title VII and the Age Discrimination in
Employment Act when:
1. On or around September 10, 1998, he was not selected for the GS-14/15
Interdisciplinary Position advertised under Vacancy Announcement
No. WO-744-98.
2. On September 15, 1999, he was issued a letter of reprimand.
3. On September 30, 1999, he was detailed to Franklin Court through
January 2000, with reduced responsibilities, and he was required to
report to an employee two pay grades below his grade.
4. On October 16, 1999, an official allegedly made an erroneous statement
concerning complainant taking medication to control violence, and the
official also asked complainant when he would retire.
5. Since January 2000, complainant has been reassigned to the Roadless
Team.
6. In May 2000, he was not selected for the positions advertised under
Vacancy Announcement Nos. WO-182-00G and WO-1821�00G (BJD).
7. He was informed that his detail or temporary assignment to the
Engineering Unit of the Roadless Team was called off.
The agency accepted the complaint for investigation. Subsequent to the
completion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On February 9, 2004, the agency
submitted a Motion to Dismiss the complaint. The AJ issued a decision
dated March 4, 2004, wherein he dismissed the complaint pursuant to
29 C.F.R. �1614.107(a)(2), on the grounds that complainant failed to
initiate contact with an EEO Counselor in a timely manner.
By final order dated April 22, 2004, the agency decided not to fully
implement the AJ's decision with regard to claim (7). The agency
determined that there is a material dispute regarding the date that
complainant's detail to the Roadless Team ended. The agency noted that
while it stated in its Motion to Dismiss that complainant's detail ended
on June 6, 2000, complainant responded that the detail ended on May
20, 2001, when he was detailed to WO Engineering. The agency further
determined that claim (7) states a claim since complainant was detailed
to a position with reduced responsibilities. The agency requested
that the complaint be remanded for completion of the hearing process.
Thereafter, the agency filed the instant appeal and requested that its
determination be affirmed and that the complaint be remanded to an EEOC
AJ for completion of the hearing process.
We note that complainant also filed an appeal with regard to the AJ's
decision. However, complainant does not challenge the arguments in
support of the dismissal of his complaint, but rather contends that the
agency did not timely serve him with a copy of its Motion to Dismiss
his complaint.
We find that complainant's contact of an EEO Counselor on June 6, 2001,
is not within the 45 day limitation period with regard to claims (1) -
(6), and is therefore untimely. As for claims (1) - (6), the alleged
incidents occurred over a period extending from September 1998 - May 2000.
Clearly, complainant's contact of an EEO Counselor on June 6, 2001, was
after the expiration of the 45-day limitation period. Further, we find
that complainant should have reasonably suspected discrimination more
than 45-days prior to his EEO Counselor contact with regard to claims
(1) - (6).
With regard to claim (7), we find that complainant has failed to state
a claim. Claim (7) does not actually involve the end of complainant's
detail to the Roadless Team, but rather complainant being informed
on June 1, 2001, that his detail to the Engineering Unit was being
cancelled. However, it is evident from the record that the detail to
the Engineering Unit was not cancelled, but rather complainant stayed in
Engineering and several weeks later funding was approved for his detail
assignment to Engineering. Complainant claimed that it was embarrassing
for him during the period that funding was withdrawn. We find that is
not sufficient to establish that he suffered personal harm to a term,
condition, or privilege of his employment. Complainant has not otherwise
shown that he was rendered aggrieved with regard to claim (7). Therefore,
we find that claim (7) is dismissed pursuant to 29 C.F.R. �1614.107(a)(1)
on the grounds of failure to state a claim. In light of our dismissal
of claim (7) on this grounds, we need not address the issue of whether
complainant timely contacted an EEO Counselor with regard to claim (7).
Therefore, we find that the complaint was properly dismissed because
claims (1) - (6) were not timely raised with an EEO Counselor and because
claim (7) fails to state a claim. Therefore, the AJ's decision dismissing
the 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
August 17, 2004
__________________
Date