01A14657_r
07-03-2002
Jeffery S. Patterson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jeffery S. Patterson v. Department of the Navy
01A14657
July 3, 2002
.
Jeffery S. Patterson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14657
Agency No. 0162381020
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated July 5, 2001, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the bases of disability (shoulder
injury) and in reprisal for contacting his Congressman when:
Complainant was not promoted or selected for the Best-Qualified
Registers for POA#99-006 Boatswain Mate, POA#00-016 Damage Controlman,
POA#00-024 Boatswain Mate, and the Third Officer Upgrade Program because
an unsatisfactory evaluation was placed in his file. This unsatisfactory
evaluation was not brought to complainant's attention until June 2000.
Complainant was suspended on August 23, 1998, for a disciplinary action,
which was issued to him effective May 28, 1997.
Complainant was advised in July 1998, by [Person A], Employee Relations
Specialist, that there was no record of his filing an appeal to his May
28, 1997 suspension issued to him.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.07(a)(2), for untimely EEO Counselor
contact. The agency noted that complainant failed to contact an EEO
Counselor on the issues identified until March 8, 2001. Alternatively,
the agency dismissed complainant's reprisal claim pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency noted that
complainant claimed he was subjected to discrimination in reprisal
for contacting his Congressman on August 24, 1998. The agency stated
that complainant failed to state a claim under the reprisal provision
because he did not have a good faith belief that when he complained to
his Congressman that he was engaged in protected activity.
On appeal, complainant claims that the date of the alleged discriminatory
matter is February 2001, when he received the results of the promotion
board. Complainant states he was assigned away from the agency until
December 21, 2000, and claims that he had no access to his files until
returning home. In addition, complainant claims that he attempted to
file a complaint on February 27, 2001, by sending an e-mail to Person B
who did not respond. Complainant states that he then called on March 1,
and March 5, 2001, and received no reply until Person C contacted him
on March 8, 2001.
The record contains an affidavit from Person B, the EEO Specialist.
Person B states that she served as the EEO Specialist from October 1993
to the present and that she did not receive an e-mail or telephone call
from complainant during the relevant period.
Upon review, we find that the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact. The record discloses that
the latest alleged discriminatory incident identified by complainant
occurred in June 2000; however, complainant did not contact an EEO
Counselor until March 8, 2001. On appeal, no persuasive arguments or
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact. With regard to the non-selections mentioned
in the complaint, we find that the non-selections were properly treated
as part of the harm allegedly occurring as a result of the negative
evaluation discovered by complainant in June 2000 and not as separate
issues.
Accordingly, the agency's decision to dismiss 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
July 3, 2002
__________________
Date
1The agency originally issued a final decision
on June 27, 2001, dismissing complainant's complaint which was amended
by the agency's July 5, 2001 decision.