01A13181_r
07-26-2001
Barry D. Walters, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Barry D. Walters v. Department of Justice
01A13181
July 26, 2001
.
Barry D. Walters,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A13181
Agency No. A-00-1016
Hearing No. 100A17322X
DECISION
Upon review, the Commission finds that the agency's December 8, 2000
decision dismissing complainant's complaint was proper pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Complainant
alleges that he was discriminated against on the bases of sex and age,
when in October 1999, he was not selected for an Attorney-Advisor
position in the Freedom of Information Act/Privacy Act (FOIA/PA).
Complainant did not initiate EEO Counselor contact until January 21,
2000, which is beyond the 45 day limitation period. Complainant argues
that he could not have reasonably suspected discrimination until January
7, 2000, after receiving documents in response to his FOIA request.
However, according to complainant's complaint, he admits that �[s]ince
I did not know [A], and could not imagine how her qualification for the
position could be superior to mine since she did not work in the branch
handling FOIA/PA matters for the Air Force, I filed a FOIA request on
October 27, 1999 for her application materials.� Therefore, we find
that complainant reasonably suspected discrimination on October 27,
1999, which is beyond the 45 day limitation period. Complainant does
not present adequate justification to warrant extension of the time
limit for initiating EEO Counselor contact.
The agency's decision dismissing complainant's complaint 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
July 26, 2001
__________________
Date