Joseph L. Czarniecki, Complainant,v.Donald L. Evans, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionOct 3, 2002
01A22032_r (E.E.O.C. Oct. 3, 2002)

01A22032_r

10-03-2002

Joseph L. Czarniecki, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.


Joseph L. Czarniecki v. Department of Commerce

01A22032

October 3, 2002

.

Joseph L. Czarniecki,

Complainant,

v.

Donald L. Evans,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A22032

Agency No. 01-54-00338

DECISION

On October 19, 2001, complainant filed a formal EEO complaint wherein

he claimed that he had been discriminated against on the bases of his

age (58), and in reprisal for his previous EEO activity under the Age

Discrimination in Employment Act when:

1. He was issued a Letter of Counseling, dated November 3, 2000,

regarding false statements made during a survey feedback action meeting,

as a means to disadvantage him for consideration in a known, upcoming,

internal GS-14 position.

2. He was not selected for the position of Meteorologist, GS-1340-14,

advertised under Vacancy Announcement Number H/NWS/01-056.KLB.

3. After his nonselection, he was issued a revised Letter of Counseling,

dated April 2, 2001, to the original letter dated November 3, 2000.

In its decision dated January 23, 2002, the agency dismissed the complaint

pursuant to 29 C.F.R. �1614.107(a)(2), on the grounds that complainant

failed to initiate contact with an EEO Counselor in a timely manner.

The agency determined that complainant's contact of an EEO Counselor

on June 27, 2001, was after the expiration of the 45-day limitation

period for initiating contact with an EEO Counselor. The agency stated

that complainant received the Letter of Counseling on November 3, 2000,

and he became aware on February 11, 2001, that he had not been selected

for the Meteorologist position. The agency determined that complainant

received the revised Letter of Counseling on April 2, 2001. The agency

determined that complainant's contact of an EEO Counselor on June 27,

2001, was after the expiration of the 45-day limitation period for

initiating contact with an EEO Counselor.

On appeal, complainant contends with regard to claim (1) that upon

receipt of the Letter of Counseling, he immediately contacted two agency

officials, and that both of these officials indicated that the Letter

of Counseling would be withdrawn. Complainant states that he did not

receive further information regarding the Letter of Counseling until

April 13, 2002, when he was told that the issue he raised had been

addressed, and that he should be receiving a letter about the issue

soon. With respect to claim (2), complainant states that the vacancy

announcement for the Meteorologist position closed on February 11, 2001,

but he did not learn until April 5, 2001, that he had not been selected

for the Meteorologist position. Complainant maintains with regard

to claim (3) that he received the revised Letter of Counseling dated

April 2, 2001, on April 22, 2001, during his mid-year appraisal meeting.

Complainant contends that he contacted an EEO Specialist by telephone on

May 18, 2001, but an EEO Counselor was not available to meet with him

until June 27, 2001. According to complainant, his EEO contact on May

18, 2001, establishes that he initiated contact with an EEO Counselor

within the 45-day limitation period with respect to claims (2) and (3).

Complainant further argues as to claim (2) that he lacked a reasonable

suspicion of discrimination until April 22, 2001. Complainant claims

that it was only when he received the revised Letter of Counseling that

he had a suspicion that it had influenced his nonselection.

In response, the agency notes that complainant stated that he was

waiting for months for confirmation that the Letter of Counseling had been

withdrawn. The agency asserts that complainant failed to raise the Letter

of Counseling during informal EEO counseling and his EEO contact was 236

days after he received the original Letter of Counseling. According to

the agency, the Letter of Counseling had a degree of permanence that

should have triggered complainant's awareness and duty to assert his EEO

rights in November 2000. The agency states that although complainant

argues that he contacted an EEO Counselor on May 18, 2001, the EEO

Counselor's report indicates that complainant's initial EEO contact

was on June 27, 2001. The agency asserts with regard to complainant's

nonselection that complainant became aware on February 11, 2001, that he

had not been selected for the Meteorologist position. The agency argues

that the revised Letter of Counseling was not raised during informal

EEO counseling and that it was received by complainant on April 2, 2001.

Upon review of the record, we find that complainant failed to initiate

contact with an EEO Counselor in a timely manner. Complainant contends

that he initiated contact with an EEO Counselor on May 18, 2001. However,

the EEO Counselor's report indicates that complainant's initial EEO

contact occurred on June 27, 2001. The EEO Counselor's report was

completed by the same EEO Counselor that complainant claims to have

contacted on May 18, 2001. We find that complainant has not submitted

sufficient evidence to establish that his initial EEO contact occurred on

May 18, 2001. Complainant received the original Letter of Counseling on

November 3, 2000, yet complainant did not contact an EEO Counselor until

June 27, 2001. Complainant claims that agency officials assured him that

the Letter of Counseling would be withdrawn. However, complainant was

not entitled to toll the 45-day limitation period for contacting an EEO

Counselor while he waited for confirmation that the agency had withdrawn

the Letter of Counseling. We find that complainant has not provided

sufficient justification for an extension of the 45-day limitation period.

With respect to claim (2), we find that complainant failed to initiate

contact with an EEO Counselor in a timely manner. Complainant claims

that the date referenced by the agency, February 11, 2001, was not the

date that he learned that he had not been selected for the Meteorologist

position, but rather the date that the relevant vacancy announcement

closed. However, assuming arguendo, that complainant did not learn of

his nonselection until April 5, 2001, we find that his EEO contact of June

27, 2001, was still after the expiration of the 45-day limitation period.

As for claim (3), we find that although the agency has not refuted

complainant's contention that he received the revised Letter of Counseling

during his mid-year appraisal meeting on April 22, 2001, complainant's

EEO contact on June 27, 2001, was nevertheless after the expiration of

the 45-day limitation period. Accordingly, the agency's decision to

dismiss the complaint was proper and 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

October 3, 2002

__________________

Date