01a21885_r
03-17-2003
Jesse G. Iverson, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Jesse G. Iverson v. Department of the Army
01A21885
March 17, 2003
.
Jesse G. Iverson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A21885
Agency No. AJAGFO0201C0010
DECISION
Upon review, the Commission finds that the agency's decision dated
January 14, 2002, dismissing complainant's complaint for failure to
state a claim and/or due to untimely EEO Counselor contact is proper
pursuant to 29 C.F.R. �� 1614.107(a)(1) and (2). In its decision,
the agency defined the complaint as alleging that complainant was
discriminated against based on religion (Mormon), sex (male), and
reprisal for participating as a witness in an EEO investigation where he
was charged with sexual harassment. Specifically, complainant alleged
that: (1) on October 4, 2000, he was charged with sexual harassment;
(2) on October 30, 2000, he was barred from his place of employment and
placed on extended administrative leave; (3) in January 2001, he lost 10
hours of use-or-lose leave; and (4) during the first week of May 2001,
a fact finding conference was conducted regarding the sexual harassment
claim against him. Complainant has not challenged the agency's framing
of the complaint. Complainant also enumerated 36 incidents/violations
describing the alleged claims in detail.
With regard to claim (4), the Commission finds that the agency's
investigation into purported improper conduct did not cause any injury
to complainant. Indeed, an agency is obligated to look into the
alleged improper conduct of its employees. See Rogers v. Department
of Defense, EEOC Request No. 05940157 (February 24, 1995) (an agency
is legally obligated to investigate a claim of sexual harassment).
There is no evidence in the record that complainant was subsequently
issued any disciplinary action as a result of this investigation. Thus,
the Commission finds that claim (4) fails to state a claim.
With regard to claims (1) through (3), the record indicates that
complainant contacted an EEO Counselor on May 17, 2001, which was beyond
the 45-day time limit set by the regulations. Complainant maintained
that the discrimination did not become apparent to him until after the
fact finding conference during the first week of May 2001, described
in claim (4). After a review of the record, the Commission finds that
complainant reasonably should have suspected discrimination at the
time of the alleged incidents which occurred from October 4, 2000 to
January 2001, i.e., when he was charged with sexual harassment, when
he was placed on extended leave, and when he lost 10 hours of leave.
On appeal, complainant, reiterating his previous arguments, does not
raise any new contentions. Based on the foregoing, the Commission finds
that complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's decision 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
March 17, 2003
__________________
Date