0120072784
08-08-2007
Adrom Parker, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Adrom Parker,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120072784
Agency No. HUD 00032 2007
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 26, 2007, 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. and 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 bases
of race (African-American), sex (male), and age (D.O.B. 02/12/43) when,
on August 12, 2006, he learned that he was not selected for the position
of Relocation Specialist, GS-301-13, announced under Vacancy Announcement
Number 01-MSR-2006-0008z from the agency's Human Resources Office in
Boston.
The record discloses that the alleged discriminatory event occurred
on August 12, 2006. The record indicated that complainant perceived
that fairness was not involved in the selection at issue and filed an
appeal with the Merit Systems Protection Board (MSPB) on October 2, 2006.
The MSPB appeal was subsequently dismissed for lack of jurisdiction on
January 12, 2007. During the processing of his MSPB appeal, complainant
discovered further information to support his belief that the selection
process was discriminatory. Therefore, on November 28, 2006, complainant
contacted the EEO Counselor regarding the non selection. Complainant
filed his formal complaint on February 16, 2007. The agency dismissed
the complaint for untimely EEO Counselor contact noting that complainant
became aware of the alleged discrimination on August 12, 2006, when
he received the non-selection notice. Subsequently, complainant did
not contact the EEO Counselor until November 28, 2006, well beyond the
45-day time limit. Complainant appealed asserting that he suspected
unfairness but did not conceive of discrimination until the processing
of his MSPB appeal.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides
that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within 45 days of the effective date
of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the
agency or the Commission to extend the time limit if the complainant
can establish that complainant was not aware of the time limit, that
complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence complainant was prevented by circumstances beyond his control
from contacting the EEO Counselor within the time limit, or for other
reasons considered sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Serv., EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)). On appeal, complainant
has presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. We find that
complainant waited and gathered supporting facts before proceeding with
his complaint. Furthermore, we note that complainant did not contact
the MSPB within the 45-day time period.
CONCLUSION
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
August 8, 2007
__________________
Date
2
0120072784
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072784