Markus C.,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0520170109 (E.E.O.C. Apr. 20, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Markus C.,1
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Request No. 0520170109

Appeal No. 0120162594

Agency No. ARIMCOMHQ16MAY01901

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120162594 (October 28, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

In his underlying complaint, Complainant claimed that he was discriminated against on the
bases of his race/national origin (Mexican/Hispanic), religion (Christian), and age (72) when:

1. On May 11, 2011, he was terminated from his position.

2. On October 21, 2011, he received a letter barring him from the installation.

In its final decision, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The Agency determined

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0520170109

2
that Complainant failed to initiate contact with an EEO Counselor within the 45-day limitation
period.

On appeal, the Commission affirmed the Agency’s dismissal of the complaint. The
Commission observed that the most recent alleged discriminatory event occurred on October
21, 2011, and Complainant did not initiate contact with an EEO Counselor until May 9, 2016,
after the expiration of the 45-day limitation period. The Commission noted that Complainant
stated he was an EEO Counselor for approximately four years and that he knew the
procedures. The Commission found that Complainant failed to provide sufficient justification
for extending the 45-day limitation period.

In his request for reconsideration, Complainant contends that he did not initiate contact with an
EEO Counselor in timely fashion because he believed the EEO Counselor was not neutral and
would favor management. According to Complainant, on October 27, 2011, he instead mailed
a letter to a member of the House of Representatives Veterans Affairs Committee wherein he
complained about the discriminatory actions taken against him. Complainant states that he
asked the Congressman if he could forward his allegations to the Commission for review and
evaluation.

We find that Complainant’s arguments in his request for reconsideration are not sufficient.
Complainant’s suspicions about the integrity of the EEO Office by itself do not constitute
justifiable grounds for him to bypass the EEO complaint process which is initiated by timely
contact of an EEO Counselor. Complainant eventually initiated contact with an EEO
Counselor but his contact was clearly long after the expiration of the 45-day limitation period.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120162594 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

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.

0520170109

3
RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 20, 2017
Date