01a11393
03-27-2001
Leonard J. McDowell, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Leonard J. McDowell v. Department of the Air Force
01A11393
March 27, 2001
.
Leonard J. McDowell,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A11393
Agency No. MUOF01001
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. In his complaint dated November 6, 2000, complainant alleged
that he was discriminated against based on physical disability when:
(1) He was not given an environmental
chemical and respirator report that was
prepared between 1985 and 1987.
(2) He was not given credit and pay for a GS-2010-09
position when he performed those
duties of the position between April 1990 and September
29, 2000.
The agency dismissed the complaint as untimely on the grounds that
complainant did not contact an EEO Counselor on these claims until October
12, 2000, which is beyond the 45 day time limit set by the Regulations.
The agency indicated that complainant contacted an EEO Counselor on the
matter of not being given appropriate credit and pay in January 2000,
but that he did not pursue the EEO complaint process at that time but
instead indicated that he was considering the pursuit of a classification
appeal. Accordingly, the agency concluded that complainant reasonably
suspected that he had been adversely impacted regarding classification
issues (claim 2) in January 2000.
The record discloses that the alleged discriminatory events occurred
between 1985 and 1987 (claim 1) and that he was not provided proper
credit and pay for his position commencing in April 1990 (claim 2), but
that complainant did not initiate contact with an EEO Counselor until
October 12, 2000, which is beyond the forty-five (45) day limitation
period. Complainant had, or should have had, a reasonable suspicion of
unlawful employment discrimination more than forty-five days before the
alleged discriminatory events in claims 1 and 2 occurred. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 27, 2001
__________________
Date