0120081233
05-06-2010
Richard J. Mulcahy, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Richard J. Mulcahy,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120081233
Agency No. HS 07-TSA-001472
DECISION
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, dated July 17, 2007, complainant
alleged discrimination based on sex (male) and age (over 40) when: (1)
on May 23, 2006, he learned that the Deputy Federal Security Director
denied his request for a third opportunity to take the recertification
test; and (2) on May 24, 2006, his employment was terminated.
The agency stated that complainant did not contact an EEO Counselor
with regard to the alleged incidents until March 14, 2007, which was
beyond 45-day time limit set by the regulations. We note that the
record contains a copy of complainant's electronic message dated July
31, 2006, to the agency's EEO/Civil Rights Office indicating that he
"found out that two females who failed to pass the x-ray re-certification
test were permitted to take the test for the third time and they are
currently employed." It appears that complainant was seeking assistance
to further process the alleged discriminatory incidents, i.e., through
agency EEO complaint process. Thus, we will consider the July 31, 2006
date as complainant's initial EEO Counselor contact date, and we find
that it was beyond the 45-day time limit by the regulations.
On appeal, complainant contends that he was never informed of the time
limit. However, the EEO Counselor's Report indicates that complainant
actually contacted an EEO Counselor on March 14, 2007, and told the
Counselor during counseling that he was indeed aware of the 45-day
time limit to contact an EEO Counselor, but he was trying to get the
situation resolved through the Disciplinary Review Board (DRB) and the
management officials before contacting an EEO Counselor. On appeal,
complainant does not dispute the foregoing EEO Counselor's statement.
The record indicates that complainant filed a DRB appeal on June 20,
2006, which was, subsequently, denied. However, the Commission has held
that the internal appeal of an agency action does not toll the running
of EEO time limitations. See Hosford v. Veterans Administration, EEOC
Request No. 05890038 (June 9, 1989).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
5/6/10
__________________
Date
2
0120081233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013