01A15204_r
01-10-2002
George R. Bryant, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
George R. Bryant v. Department of the Navy
01A15204
January 10, 2002
.
George R. Bryant,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A15204
Agency No. DON-01-68438-005
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The record shows that by notice dated May 25, 2000,
the agency advised complainant that his removal had been proposed due
to his physical inability to perform the requirements of his position.
By letter dated June 6, 2000, complainant informed the agency, inter
alia, that he had taken the steps to request disability retirement.
By notice dated June 19, 2000, complainant was informed by the agency
that he would be removed from his position effective August 26, 2000.
By letter dated March 1, 2001, complainant requested that a United States
Senator look into his removal, and stated that he wished to be reinstated.
On July 2, 2001, complainant sought EEO counseling claiming that he
had been discriminated against on the bases of race, age, disability,
and in reprisal for prior protected activity when he was forced to take
a disability retirement. During pre-complaint processing, complainant
stated that although the agency failed to accommodate his disability,
several years previously a coworker's disability had been accommodated
by the agency. Subsequently, complainant filed a formal complaint
concerning his forced disability retirement.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO Counselor contact after finding that complainant
had failed to seek EEO counseling within 45 days of August 26, 2000,
the effective date of his retirement. On appeal, complainant contends
that he did not suspect discrimination until he received a letter from
a United States Senator on September 2, 2001.
The record discloses that the alleged discriminatory event occurred on
August 26, 2000, but that complainant did not initiate contact with
an EEO Counselor until July 2, 2001, which is beyond the forty-five
(45) day limitation period. The record shows that when the agency
removed him from his position on August 26, 2000, complainant was aware
that a coworker's disability had been accommodated years previously.
Rather that seek counseling, complainant waited seven months to request
assistance from a United States Senator. The Commission has consistently
held that internal appeals, grievances or informal efforts to challenge
an agency's adverse action do not toll the running of the time limit to
contact an EEO Counselor. See Hosford v. Department of Veterans Affairs,
EEOC Request No. 05890038 (June 9, 1989).
On appeal, no persuasive arguments or evidence have been presented
to warrant an extension of the time limit for initiating EEO contact.
We also find that because complainant sought EEO counseling in July 2001,
that is, before he allegedly received the Senator's letter in September
2001, his contention that he did not suspect discrimination until he
received the Senator's letter is not persuasive.
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
January 10, 2002
__________________
Date