0120162316
09-22-2016
Randy G.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randy G.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162316
Agency No. ARKNOX16APR01675
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 14, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Diagnostic Radiologic Technician at the Agency's medical facility in Fort Knox, Kentucky.
On May 31, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability when, on June 29, 2015, his request for reasonable accommodation - to work four ten-hour days - was denied. Complainant also raised a claim of reprisal when, on March 24, 2014, he was involved in an investigation that resulted in the removal of three people.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed the reprisal claim for failure to state a claim.
The instant appeal followed. In his appeal, Complainant states that he did not contact an EEO counselor sooner because he feared he would be retaliated against.
ANALYSIS AND FINDINGS
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 record discloses that the most recent alleged discriminatory event occurred on June 29, 2015, but Complainant did not initiate contact with an EEO Counselor until April 29, 2016, which is well beyond the forty-five (45) day limitation period. On appeal, Complainant asserts that he was afraid he would be retaliated against if he pursued an EEO complaint. However, the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Def., EEOC Request No. 05930898 (Dec. 9, 1993).
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
As we are affirming the dismissal of the entire complaint for untimely EEO counselor contact, we have no need to address the Agency's alternative grounds for the dismissal of claim (2).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162316
2
0120162316