0120090001_rdoc
01-09-2009
Marshall Hilgendorf, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Marshall Hilgendorf,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090001
Agency No. 200L05022008102331
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 21, 2008, dismissing his formal 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (2), on the
grounds of untimely EEO Counselor contact.
On March 18, 2008, complainant contacted an EEO Counselor and alleged that
he was subjected to discrimination on the bases of race and disability
when:
1. On February 6, 2006, complainant's position description was
reclassified, through accretion of duties, following several failed
requests beginning October 2002;
2. On May 2004, he was forced to use 58 hours of sick leave; and
3. On October 1, 2006, complainant felt compelled to retire from
his position of Pest Controller, at the VA Medical Center located in
Alexandria, Louisiana.
Informal efforts to resolve the matter were unsuccessful and on June 16,
2008, complainant filed the instant formal complaint.
In its final decision, the agency dismissed the complaint as untimely
on the grounds that complainant did not contact an EEO Counselor in a
timely manner on his claims.
EEOC Regulation 29 C.F.R.� 1614.105(a) (1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of personnel action,
within 45 days of the effective date the action.
The record discloses that the most recent alleged discriminatory event
occurred on October 1, 2006, but that complainant did not initiate
contact with an EEO Counselor until March 18, 2008, which is beyond the
forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive 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 on the grounds of untimely EEO Counselor contact
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 9, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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