0120065068
04-05-2007
John D. Mauney, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
John D. Mauney,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200650681
Agency No. 200H05262006101
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 18, 2006, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
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 his complaint, complainant alleged that he
was subjected to discrimination on the basis of age (D.O.B. unknown,
age 54 at the time of his Formal Complaint) when:
1. on or about September 22, 2005 complainant was told by his Supervisor
(RMO: D.O.B. unknown) that he need not bother applying for GS-11
positions.
The agency dismissed the complaint for untimely EEO Counselor contact,
finding that complainant did not contact an EEO counselor until January
24, 2006, which is after the forty-five (45) day limitation period.
On appeal, complainant argues that the appointments for the positions
at issue were not made until December 13, 2005 and that the time period
for calculating when complainant should have contacted the counselor
should therefore run from that date. A review of complainant's Formal
Complaint, the Informal Complaint, as well as statements made during
an agency fact-finding investigation, however, all disclose that the
gravamen of complainant's complaint rests on the statements made by RMO
to complainant, notifying him that he need not apply for the positions
in question. Furthermore, complainant stated that this conversation with
RMO occurred "sometime in September . . . about two or three days after"
the positions were posted. Given such statements by complainant, we find
that the agency correctly found that the 45 day period ran from a date
on or about September 22, 2005. 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
April 5, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120065068
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065068