0120092838
09-28-2009
Walter P. Colton, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Walter P. Colton,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120092838
Agency No. IRS090645F
DECISION
On June 29, 2009, complainant filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the agency's
final agency decision (FAD) dated June 17, 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.
In his complaint, complainant alleged, in relevant part, that he was
subjected to discrimination based on his sex (male) and reprisal for
prior protected EEO activity under Title VII when:
1. in March 2008, he was not selected for the position of revenue officer,
GS-1169-12, vacancy announcement number 50-20-AB0860P7;
2. in May 2008, he was not selected for the position of revenue officer,
GS-1169-12, vacancy announcement number 50-20-0GB305M8; and
3. following his non-selection to the above second position, management
agreed to temporarily promote him in June or July 2008 to a GS-12 revenue
officer position if he reduced his overage inventory, but did not do so.
The FAD dismissed claims 1, 2 and 3 for failure to timely initiate
contact with an EEO counselor. It reasoned that complainant did not
contact an EEO counselor until March 12, 2009, beyond the 45 calendar
day time limit to do so.
On appeal, complainant explains that he delayed after the first
non-selection because he was told there would be more GS-12 openings
in the future, and he did not want to hinder his chance for promotion.
He explains that he delayed after the second non-selection because he
initially believed it was unnecessary to file an EEO complaint since he
expected to get a temporary promotion. Complainant argues that none of
his claims should be dismissed because they are inextricably intertwined
with his EEO harassment claims, which was accepted by the agency.
The harassment claim to which complainant refers to is as follows.
In his complaint, complainant also alleged discriminatory harassment
regarding his manager's review of a number of cases in July 2008, an
unfavorable mid-year performance review on or about August 28, 2008,
being placed on a performance improvement plan on or about October 27,
2008, receiving an annual performance rating of unacceptable for the
period covering February 1, 2008 to January 31, 2009, and in lieu of
being terminated for unacceptable performance, being forced to resign on
April 6, 2009. The agency assigned these claims a separate case number
(IRS090489M), and accepted them for investigation. It found that the
forced resignation claim was mixed,1 and treated the other claims in
case IRS090489M as mixed, reasoning they were inextricably intertwined
with the forced resignation claim.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2). The agency or Commission shall extend
the 45-day time limit for reasons considered sufficient by the agency
or Commission. 29 C.F.R. � 1614.105(a)(2).
Complainant failed to timely initiate contact with an EEO counselor
on claims 1, 2, and 3. His reasons for delaying contacting an EEO
counselor do not justify an extension of the 45 calendar day time limit.
Believing it was unnecessary to contact an EEO counselor, or a general
belief that it would hinder his chances for promotion do not legally
excuse the delay. Also, claims 1, 2 and 3 are discrete acts, and hence
complainant was required to timely seek EEO counseling regarding each
for them to be individually actionable. National Railroad Passenger
Corporation v. Morgan, Jr., 536 U.S. 101, 113 2002). Complainant did
not do so.
While case IRS090489M is not before us, we provide the following guidance.
Previously, in the U.S. EEOC Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110) (November 9, 1999), the Commission advised, in Chapter 4,
Section II.B.4.d, that where a complainant has pending a non-mixed case
complaint or a series of non-mixed complaints and the claims in those
complaints are inextricably intertwined with an appeal on a claim that
is appealable to the MSPB, the agency should file with the MSPB a motion
to consolidate the non-mixed case claim with the mixed case appeal.
As an example, this language stated that an allegedly discriminatory
performance evaluation and subsequent placement on a performance
improvement plan are non-mixed claims that may culminate in a removal,
which is appealable to the MSPB. EEOC Equal Employment Opportunity
Management Bulletin EEO-MB 100-1 (October 24, 2003), deleted Chapter 4,
Section II.B.4.d from EEO MD-110. It explained that the EEOC's Office
of Federal Operations was notified by the MSPB that the deleted language
improperly advised parties with regard to MSPB procedures and jurisdiction
as it constituted a request for an MSPB Judge to hear matters which
may not be within the jurisdiction of the MSPB. If complainant appeals
an eventual determination on case IRS090489M to the MSPB and it denies
jurisdiction over the case or a part thereof, 29 C.F.R. � 1614.302(b)(ii)
will apply, i.e., the agency must recommence processing of the mixed
case claims over which jurisdiction was denied as non-mixed case claims.
The FAD's dismissal of case claims IRS090645F 1, 2 and 3, as numbered
herein, 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 28, 2009
__________________
Date
1 A mixed case complaint claim is a claim of employment discrimination
over which the Merit Systems Protection Board (MSPB) has jurisdiction.
The procedures for processing such claims are located at 29
C.F.R. �1614.302 et seq.
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0120092838
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092838