Albert J. Garner, Sr., Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency

Equal Employment Opportunity CommissionMay 13, 1999
01982613 (E.E.O.C. May. 13, 1999)

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.