0120091683
07-02-2009
Joe L. Anderson, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Joe L. Anderson,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091683
Agency No. ARJACKSON08NOV04517
DECISION
Complainant filed a timely appeal with this Commission from a final
agency's decision (FAD) dated December 30, 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.
On February 24, 2009, complainant and his coworker allegedly exchanged
insults. Complainant allegedly told his coworker, while holding a knife,
that he was going to get him. Complainant also allegedly called his
coworker derogatory names, including words that had a racial connotation.
Thereafter, complainant was removed from the agency.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
when:
.
1. On February 25, 2008, the Nonappropriated Fund Civilian Personnel
Officer, accepted a false statement regarding the incident on February
24, 2008, from complainant's coworker;
2. On February 26, 2008, his second level supervisor informed him that
she was investigating the incident that occurred between him and his
coworker;
3. On February 26, 2008, his second level supervisor tried to make
him write a statement as to what occurred between him his coworker on
February 24, 2008, and complainant was not informed of his rights;
4. On March 19, 2008, his second level supervisor tried to intimidate
him into signing and accepting a false statement regarding the February
24, 2008, incident and did not give complainant a rights warning or the
opportunity to be represented;
5. On May 8, 2008, he was removed from the agency; and
6. On August 18, 2008, his second level supervisor appeared as the
agency's witness at his unemployment benefits hearing and presented
false statements concerning his conduct.1
The FAD dismissed claims 5 and 6 for failure to state a claim, reasoning
claim 5 was a whistleblowing claim and claim 6 was a collateral attack.
The FAD also dismissed the complaint for not being timely filed, i.e.,
not filed within fifteen days after complainant received his notice of
right to file a formal complaint. It further dismissed the complaint
for failure to timely initiate EEO counseling on all the claims.
It reasoned that complainant initiated EEO counseling on November 5,
2008, beyond the 45 calendar day time limit to do so.
On appeal, complainant argues that the EEO officer did not consider all
past complaints as well as this complaint. He further argues that he
did not receive an EEO counselor report on this case, and that his claim
is a continuing violation. Complainant contends that his second level
supervisor had no authority to attend the benefits hearing.
Pursuant to 29 C.F.R. � 1614.105(b) & .107(a)(2), an agency shall dismiss
a complaint or a portion of a complaint where an aggrieved person fails
to initiate contact with an EEO Counselor within 45 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five days of the effective date of the action.
Here, complainant exceeds the 45 day limit. The latest matter occurred on
August 18, 2008, and complainant did not contact an EEO counselor until
November 5, 2008, which exceeds the 45 day limit. Complainant has not
offered adequate justification to warrant an extension of the time limit
for filing the complaint.
Accordingly, since complainant did not timely initiate EEO counseling
on any of his claims, the FAD's dismissal of complainant's complaint is
affirmed.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
July 2, 2009
__________________
Date
1 For ease of reading, this decision changed the order of complainant's
claims as set forth in the FAD.
2 As we affirm the FAD's dismissal of the complaint on this ground,
we need not rule on the other grounds the FAD dismissed the complaint
or portions thereof.
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0120091683
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091683