01A13265_r
09-12-2002
William G. Anderson, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
William G. Anderson v. Department of the Army
01A13265
September 12, 2002
.
William G. Anderson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13265
Agency No. PI0103B0060
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.<1> In his complaint, complainant claimed that
he was discriminated against on the bases of race (Caucasian), color
(white), sex (male), and in retaliation for prior EEO activity when,
from May 2000 through October 27, 2000, complainant was subjected to
incidents of harassment by management officials.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
In the EEO Manager's affidavit, dated April 9, 2001, the EEO Manager
testifies that complainant contacted the EEO office on August 10, 2000,
September 26, 2000, and September 29, 2000. The
EEO Manager states that complainant was informed of the forty-five (45)
day limitation period on each of those dates; however, complainant did
not express an intent to pursue the EEO process at those times.
The record discloses that the most recent discriminatory event identified
by complainant occurred on October 27, 2000. Complainant should have
reasonably suspected discrimination by October 27, 2000, and, he should
have initiated EEO Counselor contact, at the latest, by December 11,
2000. Complainant did not initiate EEO Counselor contact with an intent
to pursue the EEO process until December 12, 2000, one day beyond the
forty-five (45) day limitation period. 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
September 12, 2002
__________________
Date1Since we are affirming the agency's dismissal
of complainant's complaint on the ground of untimely EEO Counselor
contact, we will not address the agency's alternative grounds for
dismissal, i.e., failure to state a claim and mootness.