05a01169
09-16-2002
Jeffrey Dowell, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jeffrey Dowell v. Department of the Treasury
05A01169
09-16-02
.
Jeffrey Dowell,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A01169
Appeal No. 01982826
Agency No. 98-1089
DECISION ON REQUEST TO RECONSIDER
Jeffrey Dowell (complainant) timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Jeffrey
Dowell v. Paul H. O'Neill, Secretary, Department of the Treasury, EEOC
Appeal No. 01982826 (February 17, 1999). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
decision where the party demonstrates that: (1) the previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 29 C.F.R. � 1614.405(b).
Complainant contacted an EEO counselor on October 3, 1997, and filed his
formal complaint on December 9, 1997, claiming that, based on sex, race
(black), and in reprisal, the agency discriminated against him when he
learned on August 6, 1997, that the agency had changed the �triggering
date� of an earlier complaint (No. 97-1311).<1> The agency explained
that, in fact, the �triggering date� of the event in his earlier complaint
had been properly designated as the date complainant signed the evaluation
that he was challenging.
In the previous decision, the Commission affirmed the agency's dismissal
of complainant's complainant pursuant to 29 C.F.R. � 1614.107(a)(1),
in that, complainant failed to show that he was harmed by the incident
in question, and pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely
contact with an EEO counselor. The Commission's regulations require that
a complainant bring his/her complaint to the attention of an EEO counselor
within 45 days of an alleged discriminatory event or the effective date of
an alleged discriminatory personnel action. 29 C.F.R. � 1614.105(a)(1).
Here, complainant stated that he learning of the event on August 6, 1997,
and should have contacted the EEO office by September 22, 1997, but he
failed to contact an EEO counselor until October 3, 1997, well outside
the 45-day period, and he failed to offer any reason or justification
to extend the 45-day time limitations period. For this reason, the
agency properly dismissed the complaint. 29 C.F.R. �1614.107(a)(2).
In addition, our regulations require that agencies accept complaints from
aggrieved employees or applicants for employment. 29 C.F.R. � 1614.103;
� 1614.106(a). An "aggrieved" complainant is one who suffers a present
harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The regulations further
provide that an agency dismiss a complaint that fails to state a claim
within the meaning of 29 C.F.R. � 1614.103. 29 C.F.R. � 1614.107(a)(1).
Complainant failed to explain how he was harmed or suffered a loss with
regard to his claim, and we find that the agency properly dismissed
his complaint.
In his request, complainant stated that he never stated the date of
the matter that he was challenging in No. 97-1311 and that the agency
failed to investigate his complaint. In the first instance, merely
because complainant did not state the date that he signed his appraisal
does not negate that it is a matter of record that he signed it on
January 28, 1997. Further, our regulations provide that the agency,
at any time prior to a request for a hearing, �shall dismiss an entire
complaint...that failed to comply with the applicable time limits.� 29
C.F.R. � 1614.107(a)(2). Once the complaint is dismissed, complainant
is no longer entitled to a hearing.
After a review of the complainant's request for reconsideration, the
previous decision, and the record before us, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01982826 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____09-16-02______________
Date
1In No. 97-1311, complainant claimed discrimination based on race and sex
when on January 28, 1997, he received his annual performance evaluation,
giving him a rating (exceeds fully successful), which was less than he
felt he deserved. The agency dismissed the complaint in No. 97-1311
for untimely EEO contact, and the agency's action was affirmed by
the Commission. Dowell v. Department of the Treasury, EEOC Appeal
No. 01976363 (June 23, 1998), req. for recon. denied, EEOC Request
No. 05980994 (November 30, 1998).