Stephan F. Thompson, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionJan 31, 2005
01a50435 (E.E.O.C. Jan. 31, 2005)

01a50435

01-31-2005

Stephan F. Thompson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Stephan F. Thompson v. Department of Defense

01A50435

01-31-05

.

Stephan F. Thompson,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A50435

Agency No. DFAS-IN-AS-04-089

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 21, 2004, 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. In his

complaint, complainant alleged that he was subjected to discrimination

on the bases of sex (male) and reprisal for prior EEO activity when:

On May 27, 2004, he was presented with a proposed suspension without

pay for seven days;

On February 27, 2004, he was presented with a proposed suspension without

pay for three days;

On February 11, 2004, he was presented with a proposed suspension without

pay for three days;

Since 1998, his performance evaluations have been lowered; and

On some unidentified date, he was given a letter of reprimand.

The agency dismissed claim 1 for failure to state a claim and claims 2 -

5 for untimely EEO counselor contact. On appeal, complainant contends

that claims 2 - 5 were �on-going and continuous� and hence were improperly

dismissed for untimely EEO counselor contact.

We find that complainant's complaint was properly dismissed. Although

the agency dismissed claim 1 for failure to state a claim, and claims

2 - 3 for untimely EEO counselor contact, the Commission finds that

these claims are more properly analyzed for whether they allege harm

from a proposed action. The Commission's regulations set forth at 29

C.F.R.� 1614.107(a)(5) provide, in part, that the agency shall dismiss

a complaint that alleges that a proposal to take a personnel action, or

other preliminary step to taking a personnel action, is discriminatory.

Here, complainant failed to claim or show that the proposal to suspend

resulted in any action against him or amounted to more than a proposal

to take a personnel action. Furthermore, complainant has not shown

how he was aggrieved by the alleged proposed action. Accordingly, we

find that the agency's dismissal of claims 1 - 3 was proper, albeit on

different grounds.

We further find that the agency properly dismissed claims 4 and 5

for untimely EEO counselor contact. EEOC Regulation set forth at 29

C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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. Here, the record evidence

shows that complainant contacted an EEO counselor on July 9, 2004 and

alleged that since 1998, his performance evaluations have been lowered

and on some unidentified date, he was given a letter of reprimand. While

complainant asserts on appeal that these acts were �on-going and

continuous,� complainant fails to claim or show that one or more of

the acts fell within the forty-five day period for contacting an EEO

counselor. Accordingly, the Commission finds that the agency's decision

to dismiss allegations 4 and 5 on the grounds that appellant failed to

seek timely contact with an EEO Counselor was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

__01-31-05________________

Date