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of Counseling would be withdrawn.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