0120092267
09-09-2009
Ricky B. Leggitte, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ricky B. Leggitte,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092267
Agency No. 2001-0619-2009100147
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 21, 2009, 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 bases of race (African-American) and sex (male)
when, between 1998 and 2005, he did not receive an additional 25 percent
of his salary for performing Administrative Uncontrolled Overtime (on
call 24 hours every day).
Briefly, the record indicates complainant resigned from the agency on
August 7, 2005. In his appeal, complainant states that he was told about
the alleged discrepancies in his pay in 2003 and reported it. Complainant
states that the agency did not pursue the matter. Complainant also pursued
the matter with the Office of Personnel Management, which dismissed the
matter for lack of jurisdiction on July 22, 2008. Complainant then filed
an appeal with the Merit Systems Protection Board (MSPB). The MSPB also
dismissed the matter for lack of jurisdiction.
The record discloses that the last alleged discriminatory event occurred
on August 7, 2005 (when complainant resigned), but complainant did
not initiate contact with an EEO Counselor until October 9, 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. We
find that complainant's contention that he knew about the discrepancy in
2003 and pursued other avenues is insufficient to justify an extension
of the applicable time limit for almost five years. See Baldwin County
Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One
who fails to act diligently cannot invoke equitable principles to excuse
lack of diligence"); Rys v. United States Postal Service, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff
must have diligently pursued her claim"). Further, the Commission
notes that because complainant has not worked with the agency since
2005 and no longer received a pay check from the agency at the time he
first sought EEO counseling, the Lilly Ledbetter Fair Pay Act of 2009,
Public Law 111-2, 123 Stat. 5, which became law on January 29, 2009,
does not apply.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
September 9, 2009
__________________
Date
2
0120092267
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092267