0520110719
02-10-2012
John M. Alden, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
John M. Alden,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520110719
Appeal No. 0120112332
Agency No. 110001501208
DENIAL
Complainant timely requested reconsideration of the decision in John
M. Alden v. Department of the Navy, EEOC Appeal No. 0120112332 (August
18, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
In the appellate decision, Complainant alleged that he was discriminated
against on the bases of perceived mental disability and reprisal for
prior protected EEO activity when on January 9, 2009, he was terminated
from his position despite a Personal Security Review Board decision to
restore his security clearance. He also maintained that he was subjected
to hostile work environment harassment when in February 2008, he was
stripped of his security clearance, in December 2007, efforts were made
to revoke his security clearance, on October 1, 2007, he was suspended,
and in the fall of 2005, an objection was made to a proposal he submitted.
Complainant appealed his removal to the Merit Systems Protection Board
(MSPB) but withdrew his appeal on March 16, 2009. The MSPB issued a
decision on March 18, 2009, dismissing the appeal with prejudice.
Complainant contacted an EEO Counselor regarding the instant complaint
on November 18, 2010. Thereafter, the Agency dismissed the complaint
for untimely EEO Counselor contact. Complainant appealed the decision
to the Commission. The Commission affirmed the Agency’s dismissal
finding that Complainant was terminated on January 9, 2009, but did not
contact an EEO Counselor until November 18, 2010, which is beyond the
forty-five (45) day limitation period. And, while Complainant argued
that he did not know that he could raise a basis of perceived mental
disability until he consulted his new attorney, the previous decision
found that Complainant presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. We also found that because Complainant withdrew his appeal
from the MSPB there was no determination that the matter was not within
the MSPB’s jurisdiction. Therefore, the Agency was not required to
process the matter as an “unmixed” complaint. Finally, we found
that the discovery of a new basis did not give rise to a new complaint
or extension of the time limits.
REQUEST FOR RECONSIDERATION
In his request for reconsideration, Complainant maintains that the
Commission erred when it failed to find that the deadline for him to
contact an EEO Counselor was tolled. Complainant again argues through
his representative that he was unaware that perceived mental disability
was a protected category and that he had no knowledge of his right to
proceed through the EEO system. Complainant also notes that contrary
to the Agency’s argument, the “Notice of Decision to Effect Your
Removal,” dated January 8, 2009, did not give him constructive notice
to contact an EEO Counselor, because it did not list perceived mental
disability. Instead it stated that Complainant should contact an EEO
Counselor if he believed that he had been discriminated against based
solely on race, color, religion, sex, national origin, physical handicap
or age. The Notice also indicated that Complainant had 30 calendar days
to contact an EEO Counselor. Complainant argues that when an Agency
provides a list of protected categories, as it did here, it has a duty
to provide a correct list and the correct dates.
Further, Complainant contends that on February 7, 2007, he attempted to
contact a Human Resources official (HR), who was not an EEO Counselor
regarding this matter and they refused to discuss his concerns regarding
his performance appraisal with him and instead referred him back to his
supervisor. Complainant maintains that he told the HR official that he
was interested in filing a grievance but she still refused to talk with
him. Therefore, he maintains that his complaint should be accepted as he
attempted to contact Agency officials regarding his EEO claims within the
time limit. Complainant contends that at a minimum his attempts should
have triggered a responsibility to inquire further into the substance
of his grievance. Accordingly, Complainant contends that based on his
arguments, the deadline for contacting an EEO Counselor should be tolled.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that Complainant failed to show that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
Agency. We find that Complainant has not presented any persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. The fact that Complainant did not know
exactly what was covered under the EEO regulations is not sufficient to
toll the deadline. The Commission has long held that employees can not
delay acting on their complaint until they have all of the information
available to file the complaint. Further, we agree that the Notice of
Decision to Effect Your Removal should have put Complainant on notice
that he could have contacted an EEO Counselor if he believed that he had
been discriminated against. While the Notice did not state the words
“perceived mental disability,” it did advise Complainant to contact
a specific person if he had questions about his rights. We find that
Complainant failed to show that he contacted the named person. Further,
we find that while the Agency does have a duty to get the dates correct
in materials forwarded to potential Complainant’s, it is immaterial in
this case because had Complainant filed a complaint within the thirty
(30) calendar days noted on the Notice, his complaint would have been
timely. Therefore, we find that Complainant was not prejudiced by
this misstatement.
Finally, we find that Complainant’s argument that he contacted a
HR official about this matter and therefore, his complaint should be
deemed timely, also fails. According to Complainant he contacted the HR
official and told her that he wanted to file a grievance. It appears
from this statement that he was selecting a forum other than the EEO
process. Other than Complainant’s conclusory statements regarding
why his complaint should have been deemed timely, we find that he has
not presented any persuasive evidence which suggests that the previous
decision clearly erred. Accordingly, we find the decision in EEOC Appeal
No. 0120112332 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on
this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
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
__2/10/12________________
Date
2
0520110719
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110719