01A22039_r
05-08-2003
DeLancie M. Horton, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
DeLancie M. Horton v. Department of Justice
01A22039
May 8, 2003
.
DeLancie M. Horton,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22039
Agency No. I-01-E057
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 5, 2002, 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, as amended, complainant alleged that he was subjected to
discrimination on the bases of race (Black) and reprisal for prior EEO
activity when:
In June 1995, the Port Director failed to inform complainant of an
opening for a permanent position, yet he informed a White, male colleague.
In January 1996, the Port Director commented that complainant's school
schedule was adversely affecting the staffing of the port.
On January 27, 1997, complainant was granted annual leave; however, the
Port Director questioned complainant's early departure from the office.
On January 31, 1997, complainant's request for annual leave was
disapproved for February 3, 1997. On the morning of February 3, 1997,
complainant was granted 10 hours of sick leave. The Port Director
submitted a memo to the Supervisory Immigration Inspector stating that
complainant's leave request was suspect and to take appropriate action.
In July and August 1998, collateral duties were assigned based on
Inspectors' preference. However, the Port Director assigned complainant
duties, while other colleagues choose their duties based on their own
preference.
On August 9, 2000, the Port Director indicated that complainant was not
in his inspection booth and requested that disciplinary action be taken
against him.
On May 17, 2001, complainant received a telephone call stating that
his car would be towed from the Immigration employee parking lot at the
instruction of the Port Director.
The agency dismissed issues (1) through (5) pursuant to the regulation set
forth at 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
The agency dismissed issues (6) and (7) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
With regard to issue (6), the agency stated that there is no evidence
that any disciplinary action was taken against complainant. With regard
to issue (7), the agency noted that there is no evidence that any action
was taken with regard to towing complainant's car.
On appeal, complainant stated that he did not reasonably suspect
discrimination with regard to the prior incidents. Complainant avers that
there were numerous events that took place up until the discrimination
was reported to an EEO Counselor. Complainant claims that he could have
given many more instances including periods from 1998-2001, but was not
instructed to do so. Further, complainant argues that he does state a
claim of discrimination.
Upon review, we find that the agency properly dismissed issues (1) -
(5) for untimely EEO Counselor contact. The record reveals that the
incidents raised in claims (1) - (5) occurred during the period from June
1995 through August 1998. The record reveals that complainant did not
contact an EEO Counselor until September 9, 2000, which is beyond the
45-day time limit. While complainant did raise claims (6) and (7) in a
timely manner, we note that there is a significant time lapse between the
incidents identified in claims (6) and (7) and those raised in claims
(1) through (5), indicating the lack of a common link or similarity
between them. Complainant failed to proffer adequate justification to
extend the applicable time limit. Therefore, we find that claims (1)
through (5) were properly dismissed as untimely. Furthermore, we note
that complainant failed to specifically identify any incidents on appeal
that occurred between August 1998 and August 2000.
With regard to issues (6) and (7), we find that the agency properly
dismissed these issues for failure to state a claim. With regard to
issue (6) the agency states, without dispute from complainant, that no
disciplinary action was taken against complainant in response to the
Port Director's report of complainant not being in his inspection booth.
Further, with regard to issue (7), the agency notes that there is no
evidence that any action was taken with regard to towing complainant's
car. Complainant has not claimed that his car was actually towed.
The Commission finds that with regard to issues (6) and (7), complainant
has failed to show a harm or loss to a term, condition, or privilege
of employment.
Accordingly, the agency's final decision dismissing the 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
May 8, 2003
__________________
Date