01a55180
11-30-2005
John S. Mayfield, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
John S. Mayfield v. Department of Veterans Affairs
01A55180
November 30, 2005
.
John S. Mayfield,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55180
Agency No. 200J-0556-2005102377
DECISION
Upon review, the Commission finds that the complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact. The complainant claimed that he was
subjected to discriminatory harassment by agency police based on his race
(African-American) when:
(1) around October 2003, he was grabbed and his head was smashed against
a brick wall five times,
(2) around October 2003, he was arrested and incarcerated for allegedly
slamming a door on a police officer,
(3) around October 2003, drugs were allegedly planted on his person, and
(4) around March 2004, his employee rights were not read or explained
to him when he was stopped in excess of five times for driving violations.
The complainant initiated contact with an EEO counselor on April 29, 2005.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). The time limit to seek EEO counseling shall be extended
when an individual shows that he was not notified of the time limits
and was not otherwise aware of them, or for other sufficient reasons.
29 C.F.R. � 1614.105(a)(2).
While the complainant cited the March 2004 date in his complaint, he
told the EEO counselor that he was harassed when he was stopped by
agency police in December 2004 for a vehicle violation, and had been
stopped by agency police five times. The record contains an agency
police report showing that he was stopped by agency police as recently
as November 2004 for driving with a suspended licence.
The final agency decision (FAD) dismissed the complainant's complaint
on the grounds that he did not seek EEO counseling within the 45 day
time limit. The complainant does not contest this. Rather, he claimed
that he was not aware of the 45 day time limit to seek EEO counseling.
The FAD found that the complainant was aware of the 45 day time limit
because he took EEO training. In response to the complainant's appeal,
the agency submits an affidavit by an EEO Manager affirming that in
September 1998 the agency gave mandatory �ORM/EEO Process� training
which covered the 45 day time limit for contacting an EEO counselor.
Employees who were unable to attend the live training were required to
view a videotape of the live training. The EEO Manager affirmed that
while the complainant was unable to attend the live training, he executed
a sign-in sheet indicating that he viewed the videotape of the training,
and it covered the 45 day time limit. The agency copied the affidavit
to the complainant, and he does not contest it. Accordingly, we find
that the complainant knew or should have known of the 45 day time limit.
The complainant also stated that he delayed contacting an EEO counselor
because he feared doing so would bring more unfair treatment of him
by the agency police. This is insufficient reason to delay initiating
contact with an EEO counselor. On appeal, the complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO counselor contact. Accordingly, the FAD's
dismissal of the 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
November 30, 2005
__________________
Date