0120070830
02-16-2007
Michael Layne, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Michael Layne,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070830
Agency No. HS06CBP003204
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 25, 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 reprisal for prior protected
EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. he was not issued either Customs and Border Protection (CPB)
or a New York and New Jersey Port Authority credentials;
2. he was not provided with a uniform allowance; and
3. he was denied overtime pay.
In its Final Agency Decision (FAD) the agency dismissed the claims,
finding that the complaint stated the same claims as were raised by
complainant in a prior EEO complaint. The agency further found that
complainant failed to timely contact an EEO Counselor. Complainant makes
no new argument on appeal and the agency requests that we affirm the FAD.
The record discloses that the complainant was aware of the alleged
discriminatory events by at least January 3, 2006, if not earlier. On
that date, he filed a Formal Complaint, along with twelve others, alleging
discrimination based on age when he was he was required to complete a
training class in order to retain his Other Than Full-Time-Permanent
(OTFTP) position (addressed in Layne v. Dept. of Homeland Security,
EEOC Appeal No. 01A64506 (September 26, 2006). As background material in
that complaint, he raised the same concerns about credentials, uniforms,
and overtime that he now raises as claims in the present complaint.
In the present complaint, however, complainant did not initiate contact
with an EEO Counselor until July 31, 2006, which is beyond the forty-five
(45) day limitation period. 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
February 16, 2007
__________________
Date
2
0120070830
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036