0120090188
02-05-2009
Jasper Brayboy, Jr., Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Jasper Brayboy, Jr.,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090188
Agency No. ARSTEWAR08JUL02599
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 5, 2008, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Upon review, the Commission finds that complainant's
complaint was properly dismissed.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American), age (57), and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when, between May 2007 and December 2007: (1) he was
denied a promotion, (2) he worked in a management position and was denied
management pay for the work, (3) his picture was removed from the wall
in the presence of two soldiers, (4)he was harassed about wearing sun
glasses, (5) he was issued a letter of counseling, and (6) in June 2008,
he was discredited in front of a subordinate. The agency dismissed
claims 1-5 of the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Claim 6 was dismissed, pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The instant
appeal followed.
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.
29 C.F.R. � 1614.107(a)(2 ) allows for the dismissal of complaints that
fail to meet this timeframe.
The record discloses that the last alleged discriminatory event related to
claims 1-5 occurred on December 5, 2007, but complainant did not initiate
contact with an EEO Counselor until July 1, 2008, 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.
With respect to the claim (6), the Commission finds that the incident
as described by complainant fails to state a claim under the EEOC
regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 5, 2009
__________________
Date
2
0120090188
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090188