Adrom Parker, Complainant,v.Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionAug 8, 2007
0120072784 (E.E.O.C. Aug. 8, 2007)

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

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0120072784