01A13870_r
03-06-2002
Marc W. Webster, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Marc W. Webster v. Department of the Navy
01A13870
March 6, 2002
.
Marc W. Webster,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13870
Agency No. 0031935004
DECISION
Upon review, the Commission finds that the agency's decision dated
April 20, 2001, dismissing complainant's complaint due to untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2) was proper.
In his complaint, complainant alleged that he was discriminated against
on the bases of race (Black) and national origin (American) when:
(a) During complainant's tour of duty aboard USNS Pecos from August
1998 to January 1999, he was treated in a hostile and unprofessional
manner by First Officer [S1].
Complainant received improper promotion evaluations aboard USNS Pecos
dated August 14, 1998 to November 7, 1998 and August 14, 1998 to December
28, 1998.
The agency failed to promote complainant to the position of First
Officer in May 1999.
Complainant contacted an EEO Counselor with regard to claims (a) and
(b) on April 27, 1999, which was beyond the 45-day time limit set by the
regulations. Complainant presents no evidence to show he either discussed
his May 1999 promotion denial (claim (c)) with the EEO counselor prior
to the filing of his formal complaint on October 23, 1999. Therefore,
we find that claim (c) was also not raised within the 45-day time limit.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper, and is hereby 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
March 6, 2002
__________________
Date