0120130818
05-16-2013
Michael E. Kennedy, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Michael E. Kennedy,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130818
Agency No. 13-40080-00793
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 4, 2012, dismissing two formal EEO complaints that claimed 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.
BACKGROUND
Complainant, a job applicant, filed the two formal complaints on the same day, September 13, 2012. Therein, Complainant claimed that the Agency subjected him to discrimination in reprisal for prior EEO activity when:
a. he was not selected for the position of Utility Systems Operator, WG-4742-08/1, at the Agency's Indian Head, Maryland facility, advertised under Vacancy Announcement Number NW24742-08-598191K1253468-D; and
b. he was not selected for the Utility Systems Operations, WG-4742-10, at the Agency's Bethesda, Maryland facility, advertised under Vacancy Announcement Number NW24742-10-727482K1412861.
The Agency dismissed the two instant formal complaints on the basis that the matters raised therein had not been raised in EEO counseling and were was not like or related to a matter raised in counseling, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined as indicated in his instant complaints, Complainant did not discuss his claims with an EEO Counselor.
Complainant, on appeal, argues that his two formal complaints asserted that the Agency and its recruitment team "engaged in utilizing a blanket exclusion policy of applicants with arrest records and/or certain felony convictions from civilian employment with the U.S. Navy in direct violation of Title VII of the Civil Rights Act of 1964...given the nature of the asserted discrimination, [Complainant] declined speaking with a Navy EEO Counselor and participating in the Alternate Resolution Remedy ("ADR") process as it was not feasible given the Navy's promulgation of a policy implementing the usage of a blanket exclusion policy [emphasis in its original]."
In response to Complainant's appeal, the Agency stated that in the instant appeal, Complainant responded "No" to Question 8 in both formal complaints clearly indicating he did not discuss each formal complaint with an EEO Counselor.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Agency properly dismissed the two instant formal complaints on the grounds that Complainant did not seek EEO counseling regarding these matters. The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the Complainant has receiving counseling.
A fair reading of the record reveals that Complainant never contacted an EEO Counselor to initiate processing of the two instant complaints. Instead, Complainant filed the two instant complaints in the absence of EEO counseling. We note that in each of the two formal complaints, Complainant checked the "No" box for Question 8: "Have you discussed your complaint with an EEO Counselor?" We further note in the last page of the two complaints, Complainant provided an explanation of alleged discrimination. Specifically, Complainant stated "resolution by the ADR process is not feasible given the nature of the discrimination, the Navy's clear usage of a blanket exclusion policy, and otherwise willful violation of federal regulations and statutes prohibiting discrimination. Accordingly, this complaint is to be entreated as a formal complaint to streamline the EEO process in order to seek ultimate resolution in the federal courts. Any request for ADR resolution is therefore not encouraged nor will be entertained."
Therefore, we find that Complainant failed to provide an adequate justification for not contacting the EEO Counselor, as required by the regulations, prior to filing a formal complaint. Accordingly, the Agency's final decision dismissing the two instant complaints pursuant to 29 C.F.R. � 1614.107(a)(2) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 16, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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