01982613
05-13-1999
Albert J. Garner, Sr., Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency
Albert J. Garner, Sr. v. Department of Defense
01982613
May 13, 1999
Albert J. Garner, Sr., )
Appellant, )
) Appeal No. 01982613
v. ) Agency No. DT-98-012
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. The final agency decision was
dated January 21, 1998. The appeal was postmarked February 19, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are: 1) whether the agency properly dismissed
appellant's complaint for untimely contact with an EEO Counselor;
and 2)whether the agency properly dismissed two of the allegations in
appellant's complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint of discrimination on December 22,
1997, alleging discrimination on the bases of race (black), sex (male)
and age (DOB 2/6/50). The agency identified 3 separate allegations
of discrimination: 1) in February 1997, appellant's managers received
a recommendation to noncompetitively promote employees who met certain
criteria that did not apply to him, and he was not promoted although he
believed he should have been; 2) in July 1997, appellant's name was not
referred to the selecting official for consideration for a promotion;
and 3) on July 31, 1997, appellant's unofficial detail was terminated
and he was returned to his assigned position. The agency issued a final
agency decision dismissing the complaint on the grounds that appellant
had failed to contact an EEO Counselor within the 45 day period and
that he had failed to state a claim regarding allegations 1 and 3.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days
of the effective date of the personnel action. In this case, appellant
first contacted an EEO Counselor about his suspicions of discrimination
on November 14, 1997, which was nearly 106 days after the last claimed
date of discrimination, July 31, 1997. Appellant makes no argument on
appeal that the time limit should be extended. Instead, the counselor's
report detailed that appellant stated he contacted the EEO Office more
than 45 days after the date of discrimination because he had tried to
resolve the issue at the lowest level possible. Appellant does not
rebut this assertion in his appeal statement. The Commission has held
that informal attempts to resolve a problem do not toll the time limit
for seeking EEO counseling. Delora E. Jones v. Department of Justice,
EEOC Request No. 05930909 (March 17, 1994). Thus, the Commission affirms
the agency's dismissal of appellant's complaint on the grounds of untimely
EEO Counselor contact.<1>
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 13, 1999
______________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Because the Commission has affirmed the agency's dismissal on the basis
of untimely EEO contact, we need not address the issue of the dismissal
of allegations 1 and 3 for failure to state a claim.