0120122131
10-05-2012
Walter E. Ullmayer, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Walter E. Ullmayer,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120122131
Agency No. FS201100987
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated March 8, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Budget Analyst at the Agency's facility in Juneau, Alaska.
On December 19, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when on unspecified occasions:
1. Complainant was denied performance awards;
2. Complainant's request for telework was denied;
3. Complainant was issued a Letter of Instruction;
4. Complainant's requests for sick leave, unless approved in advance, were denied; and
5. Complainant was twice denied the opportunity to attend the annual budget officers' conference.
The Agency's decision regarding the instant complaints is unclear. The Agency initially appears to have dismissed the claim on various grounds, finding that none of the allegations listed in the Formal Complaint were raised before the EEO Counselor. The Agency further found that the allegations appeared to be identical to previously filed complaints but that "it is unclear whether (the earlier-filed claims) are the same incidents to which he refers in this complaint." FAD, p. 2. While the FAD concludes by stating that "the complaint is dismissed in its entirety," id., p. 3, we note that the FAD also states that "pursuant to 29 C.F.R � 1614.107(a)(2) we are referring the claims raised here to counseling. We advise the Complainant to seek counseling within 15 calendar days of receipt of this decision, if he wishes to file a formal complaint." The FAD also provides Complainant with information on how to contact an EEO Counselor, notifies him that he may amend his complaint, and notifies him about the appropriate time limits for timely EEO Counselor contact.
The instant appeal followed. Neither party makes any contention or argument on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.107(a)(2), the Agency shall dismiss a complaint that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor.
The record shows that Complainant sought EEO counseling on September 2, 2011,1 regarding an April 1, 2011 proposed letter of suspension. Complainant then filed a Formal Complaint on December 19, 2011, that did not address the proposed letter of counseling but instead addressed the five issues listed above. Because we find that these five issues are not like or related to the issue of the proposed suspension which was raised in counseling, we discern no basis to disturb the FAD.
Accordingly, for the reasons stated above, the Agency's dismissal of the complaint and referral of the matters to EEO counseling is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 5, 2012
__________________
Date
1 The counseling report explained that untimely EEO Counselor contact was not an issue because on August 16, 2011, Complainant received a partial acceptance letter for various other claims, not addressed in this complaint, but that the proposed letter of separation had not been counseled and the Agency directed Complainant to seek counseling for that issue, which he subsequently did on September 2, 2011.
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0120122131
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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