James Gladden, Complainant,v.Margaret Spellings, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionJun 21, 2007
0120071861 (E.E.O.C. Jun. 21, 2007)

0120071861

06-21-2007

James Gladden, Complainant, v. Margaret Spellings, Secretary, Department of Education, Agency.


James Gladden,

Complainant,

v.

Margaret Spellings,

Secretary,

Department of Education,

Agency.

Appeal No. 0120071861

Agency No. ED20070900

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 31, 2007, 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., the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. �

206(d) et seq.

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of race (African-American), sex (male),

and age (D.O.B. 12/25/46) when on September 15, 2003, he was reassigned

to Team B and assigned additional duties for both the Title III Program

and the College Housing Academic Facilities Loan (CHAFEL) program.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact. In pertinent part, the EEOC regulation found

at 29 C.F.R. � 1614.107(a)(2) allows an agency to dismiss a complaint

that fails to comply with the applicable time limits contained in 29

C.F.R. � 1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires

that complaints of discrimination should be brought to the attention of

an EEO Counselor within forty-five (45) days of the date of the matter

alleged to be discriminatory or, in the case of a personnel action,

within forty-five (45) days of the effective date of the action. The

Commission has adopted a "reasonable suspicion" standard (as opposed to a

"supportive facts" standard) to determine when the forty-five (45) day

limitation period is triggered. See Howard v. Dep't of the Navy, EEOC

Request No. 05970852 (February 11, 1999). Thus, the time limitation is

not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent. EEOC regulations provide that the agency or the

Commission shall extend the time limits when the individual shows that

he was not notified of the time limits and was not otherwise aware of

them, that he did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred, that despite

due diligence he was prevented by circumstances beyond his control from

contacting the Counselor within the time limits, or for other reasons

considered sufficient by the agency or the Commission.

The record discloses that the alleged discriminatory event occurred on

September 15, 2003, but complainant did not initiate contact with an

EEO Counselor until August 22, 2006, which is beyond the forty-five

(45) day limitation period. Complainant does not allege that he was

unaware of the time limits for contacting an EEO Counselor or that he

was prevented by circumstances beyond his control from contacting an EEO

counselor within the time limits. On appeal, complainant has presented

no persuasive arguments or evidence warranting an extension of the time

limit for initiating EEO Counselor contact. Accordingly, the agency's

final 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

June 21, 2007

__________________

Date

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0120071861

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071861