Marlo F. Bowman, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 29, 2009
0120091102 (E.E.O.C. May. 29, 2009)

0120091102

05-29-2009

Marlo F. Bowman, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.


Marlo F. Bowman,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120091102

Agency No. 200821705FAA06

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 20, 2008, dismissing his 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.

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 Counselor contact.

In his complaint, complainant alleged that he was subjected to

discrimination on the basis of race (African-American) when three Aviation

Safety Inspectors were promoted on September 9, 2001, but complainant

was not considered for the promotion.

Briefly, complainant was a General Aviation, Principal Management

Inspector (PMI), but in April or May 2001, he was reassigned to a Air

Worthiness Geographic Inspector position. In September 2001, three PMIs

were promoted to GS-14 through accretion of duties, and complainant

was not because he was no longer a PMI. Complainant was aware of the

promotions by December 30, 2001, and contacted an EEO counselor on March

11, 2002, alleging race discrimination.

A settlement agreement was reached on the matter on July 2, 2002,

whereby complainant would be given priority consideration for the next

available PMI GS-14 assignment. When the agency failed to consider

him in 2007, he filed a breach of settlement agreement claim. In EEOC

Appeal No. 0120080989 (February 29, 2008), the Commission found there

had been a breach and gave complainant the option of reinstating his

complaint from the point at which its processing ceased due to the

settlement. Complainant chose that option and the agency resumed EEO

counseling on the matter, and complainant eventually filed a formal EEO

complaint on July 23, 2008. On November 20, 2008, the agency issued its

final decision dismissing the complaint as untimely raised with the EEO

counselor and for failure to state a claim. Complainant then filed the

instant appeal.

As an initial matter, the Commission finds that complainant has stated

a viable claim of discrimination and the complaint should not have been

dismissed on that basis. The agency's argument that because complainant

was no longer an PMI he was not eligible for the promotion goes to the

merits of the claim and cannot be the basis of a dismissal prior to an

investigation and further processing.

Nonetheless, the Commission finds that complainant untimely raised the

matter with the EEO counselor. EEOC Regulation 29 C.F.R. � 1614.105(a)(1)

requires that complaints of discrimination should be brought to the

attention of the Equal Employment Opportunity Counselor within forty-five

(45) days of the date of the matter alleged to be discriminatory or,

in the case of a personnel action, within forty-five (45) days of the

effective date of the action. The EEO counselor's report indicates

that complainant stated that the promotions occurred in September 2001,

and he was aware of the alleged discriminatory event by no later than

December 30, 2001. However, it is undisputed that complainant did not

oringally initiate contact with an EEO Counselor until March 11, 2002,

which is beyond the forty-five (45) day limitation period. On appeal,

complainant has presented no arguments or evidence warranting an extension

of the time limit for initiating EEO Counselor contact.

Accordingly, the agency's final decision dismissing complainant's

complaint for untimely EEO counselor contact is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

May 29, 2009

__________________

Date

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0120091102

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091102