0120054976
03-30-2007
John-Pierre Baney, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Prisons) Agency.
John-Pierre Baney,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons)
Agency.
Appeal No. 01200549761
Agency No. P-2005-0083
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 27, 2005, dismissing his formal 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.
On January 12, 2005, complainant filed a formal complaint. Therein,
complainant claimed that he was the victim of unlawful employment
discrimination on the bases of sex (male), age (50), sexual orientation,
and in reprisal for prior protected EEO activity.2
On June 27, 2005, the agency issued the instant final decision.
The agency determined that the instant complaint was comprised of four
claims, identified in the following fashion:
1. In December 2004, a less senior Hispanic staff member was placed into
a position of seniority, and prior to this placement said vacancy was
never announced to all staff.
2. Management lied to an EEO investigator, complainant's attorney,
a Bureau of Prisons attorney and the Warden, regarding complainant's
claims of stopped medical, dental and vision benefits.
3. Management perjured itself, and on four occasions, the Bureau of
Prison's EEO office refused complainant's petition for a new EEO
Counselor.
4. The Bureau of Prisons' Office of South Central Regional regarded
complainant as having a mental disability, and this motivated its actions
against him; this Office made no attempt to accommodate his perceived
disability, but rather used their perceptions to harass complainant;
and has attempted to circumvent the charges by creating "pretextual
non-legitimate explanation for [its] reprisal and discrimination"
because complainant has filed lawsuits against it.
The agency dismissed claims (1) - (4) on the grounds that these claims
were not raised with an EEO Counselor and that they are not like or
related to a matter for which complainant underwent EEO Counseling.
The agency also dismissed claims (2) - (4) on the grounds that these
claims allege dissatisfaction with the processing of a prior complaint.
The agency dismissed claim (4) on the added alternative grounds of
failure to cooperate.
EEOC Regulation 29 C.F.R. � 1614.105(a) requires that aggrieved persons
who believe they have been discriminated against must consult a Counselor
prior to filing a complaint in order to try to informally resolve the
matter.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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.
Agencies are likewise required to dismiss complaints raising claims not
brought to the attention of an EEO Counselor and are not like or related
to a matter that had been brought to the attention of an EEO Counselor.
29 C.F.R. � 1614.107(a)(2).
A fair reading of the record reveals that complainant never contacted
an EEO Counselor to initiate processing of the instant complaint.
Instead, complainant filed the instant formal complaint in the absence
of EEO counseling. On appeal, complainant argues, among other matters,
that in previously filed EEO complaints, the agency had refused to
provide him with a new EEO Counselor. However, complainant does not
provide elaboration of the reasons for refusing EEO counseling with
the EEO Counselor who he has been assigned. Complainant states that
"[I]t's against my privacy to talk with anybody about what Mr. B (the
EEO Counselor) had done in the last counseling with me."
The record reveals that complainant previously filed an appeal with
the Commission, and was well aware of his obligation to contact an EEO
Counselor prior to filing a written complaint. The Commission affirmed
the agency's dismissal of a prior complaint, when complainant refused
to contact an agency EEO Counselor based on his belief that the EEO
Counselor had a conflict of interest. The Commission determined that
complainant's belief did no justify complainant's failure to follow
regulatory procedures. Baney v. Department of Justice, EEOC Appeal
No. 01A53938 (September 15, 2005); request to reconsider denied, EEOC
Request No. 05A60016 (October 31, 2005)
The Commission determines that in the instant case, complainant has
again failed to provide an adequate justification for not contacting
the EEO Counselor, as required by the regulations, prior to filing a
formal compliant. Accordingly, the agency's final decision dismissing
the complaint pursuant to 29 C.F.R. � 1614.107 (a)(2) is AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint for
not raising the claims with an EEO Counselor, we find it unnecessary to
address the agency's alternative dismissal grounds.
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
March 30, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 We note that sexual orientation, marital status, parental status,
and political beliefs are not covered by the Federal regulations that
this Commission enforces. See 29 C.F.R. � 1614.101.
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0120054976
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054976