0120121795
07-17-2012
John Knox, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John Knox,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121795
Agency No. 2004-0010-2012100722
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 1, 2012, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Deputy Director in the Decision Support Office, at an Agency facility in Austin, Texas. On November 22, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On January 3, 2012, Complainant filed a formal EEO complaint claiming that the Agency subjected him to discrimination on the bases of disability, age, and in reprisal for prior protected activity1 when, on August 10, 2011, he was informed that he was not selected for the position of Director, Decision Support Office, GS-15.
On February 1, 2012, the Agency issued a final decision dismissing the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The Agency reasoned that although Complainant learned of his non-selection in August 2011, he did not initiate contact with an EEO counselor on the matter until November 22, 2011, beyond the 45-day limitation period.
The instant appeal followed. On appeal, Complainant, through his representative, argues that his November 2011 counselor contact should be considered timely because that prior to pursuing the EEO complaint process in the instant matter, he had an "ongoing alternative dispute resolution [ADR] case." He asserts that he was informed by an unidentified EEO representative that the ADR matter would have to be resolved before filing an EEO complaint. Complainant alleges that it was only after a discussion with another EEO representative that he was informed that he would pursue the EEO complaint process "with an ongoing ADR issue."
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R � 1614.105 (a) (1) states that an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory. Section 1614.107(a) (2) provides that an agency shall dismiss an entire complaint that fails to comply with the applicable time limits contained in 1614.105.
It is undisputed that Complainant learned of his non-selection for the position in question on August 10, 2011, but did not initiate contact with an EEO counselor until November 22, 2011, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. Complainant asserts that an EEO representative misled him into delaying his contact with a counselor. However, this EEO representative is not expressly identified by Complainant and no details of the alleged conversation with this individual are provided. We conclude that other than his bare assertion, Complainant has not provided any evidence to support his contention that he was misled.
Accordingly, the Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 17, 2012
__________________
Date
1 Complainant alleges that his non-selection was in retaliation for his successful participation in alternative dispute resolution (ADR) regarding earlier raised matters.
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0120121795
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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