01A52310
03-10-2006
James W. Brand, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
James W. Brand,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A52310
Agency No. 2004-18322-FAA-02
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 15, 2004, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of age (born March 2, 1947) when the agency implemented
the Core Compensation System in 1998 that limited all employees at the
maximum of their pay band to receive all future Organization Success
Increase and Superior Contribution Increase awards as a lump sum payment
and complainant became aware of the impact to him on June 27, 2004.
In its final decision, the agency dismissed complainant's complaint for
untimely EEO Counselor contact and additionally, for failure to state
a claim.
The record reveals that the Core Compensation System was implemented
in 1998 and complainant last received a lump sum payment on January 11,
2004. During counseling, complainant acknowledged that he became aware
of the impact of the Core Compensation System on him on June 27, 2004.
However, complainant did not initiate contact with an EEO Counselor until
September 23, 2004, 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. Consequently, we find that the agency properly
dismissed complainant's complaint for untimely EEO Counselor contact.1
See Hoeft v. Department of Transportation. EEOC Appeal No. 01A52254
(February 9, 2006)(finding untimely EEO Counselor contact where claim
concerned Core Compensation System implemented in 1998 and complainant
last received a lump sum cash award on January 11, 2004, but did not
initiate contact with an EEO Counselor until July 9, 2004).
Accordingly, the Commission AFFIRMS the agency's final decision.
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
_ March 10, 2006_________________
Date
1 Because we are affirming the agency's dismissal of complainant's
complaint on the basis of untimely EEO Counselor contact, we will not
address the additional basis for the agency's dismissal, failure to
state a claim.
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01A52310
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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