0120150717
03-30-2016
Royce O.,1 Complainant, v. Mary Jo White, Chair, Securities and Exchange Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Royce O.,1
Complainant,
v.
Mary Jo White,
Chair,
Securities and Exchange Commission,
Agency.
Appeal No. 0120150717
Agency No. 00032-2014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 24, 2014, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Staff Accountant at the Agency's Philadelphia, Pennsylvania Regional Office.
On August 25, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On October 3, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race and age when:
on or about June 4, 2014, he learned that he was not selected for the position of Assistant Regional Director in the Philadelphia Regional Office.
In its October 24, 2014 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on August 25, 2014, which it found to be beyond the 45-day limitation period. The Agency noted in the EEO Counselor's Report, the EEO Counselor stated that Complainant told him that mid-July 2014, he found out additional information regarding the selection process which he believed to be discrimination.
The record contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor stated that in regard to his untimely EEO contact, Complainant stated "he found out some additional information regarding the selection process for the position, which he believes to be discrimination. He was told that the candidates who were selected for the second interview should 'dress down,' so that staff in the PLRO Office would not know they were being interviewed. He was told this in mid-July, date unknown."
Complainant, on appeal, stated that the Agency erred dismissing his complaint for untimely EEO Counselor contact. For instance, Complainant stated that the Agency "is incorrect when it states that I provided no justification to support a waiver of the time limit to file this complaint, beyond the notification of [selectee] as Assistant Regional Director, effective June 4, 2014. Certain facts evidencing my treatment for this role were not revealed until after the 45 day period subsequent to the announcement of [selectee's] hiring for this role."
The instant appeal followed.
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 personnel action, within forty-five (45) days of the effective date of the action.
The alleged discriminatory event occurred on June 4, 2014. However, Complainant did not initiate contact with an EEO Counselor until August 25, 2014, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor. In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing the formal complaint for the reason stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
March 30, 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
0120150717
4
0120150717
5
0120150717