James R. Edwards, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 7, 2007
0120073059 (E.E.O.C. Sep. 7, 2007)

0120073059

09-07-2007

James R. Edwards, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


James R. Edwards,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120073059

Agency No. 07-42158-00605

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 1, 2007, 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. and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 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 (White), sex (male), and disability (vision impairment) when:

a. In 2001, 20021 and again on October 18, 2006, complainant

received a Placement Action memorandum due to his permanent

medical restrictions;

b. Complainant was denied the opportunity to receive training as

were two co-workers, which resulted in their lateral transfer to other

Code 742 positions.2

The record discloses that the most recent alleged discriminatory event

occurred on November 27, 2006, when complainant discussed the Placement

Action memorandum with the issuing official, but complainant did not

initiate contact with an EEO Counselor until January 19, 2007, which 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 pursuant

to 29 C.F.R. � 1614.107(a)(2) 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

September 7, 2007

__________________

Date

1 We note that in his appeal statement, complainant describes the same

event occurring in 2001 and 2002 that happened in 2006, namely, the

issuance of a Placement Action memorandum by the same agency official,

though complainant seeks relief in the instant complaint for only the

most recent memorandum.

2 We note that complainant agreed with the agency's identification

of his claims. However, on appeal, complainant states that he did not

request training, but mentioned the training received by other employees

to illustrate that he was treated differently than they were.

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0120073059

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120073059