0120093312
01-29-2010
Andrew Searcy, Jr, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Andrew Searcy, Jr,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120093312
Hearing No. 570200800474X
Agency No. 2008016
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 26, 2009, adopting an EEOC Administrative Judge's
(AJ) decision dismissing his class 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.
On February 6, 2008, the agency received an EEO formal complaint of
discrimination from complainant in which he requested class certification
and designated himself as the class agent. In his complaint, complainant
alleged that he was subjected to discrimination on the basis of race
(African American) when, on June 12, 2006, he received a notice from the
agency that his application for deferred retirement was being returned
to him unprocessed because his retirement contributions were forfeited
in January 1979 to the U.S. Department of Agriculture (Agriculture) to
pay a debt he owed that agency. The record establishes that complainant
first sought EEO counseling on this matter on January 14, 2008.
It appears that complainant, a former employee at Agriculture, incurred
the debt in the late 1970s because he signed an agreement that he
would remain at Agriculture for a minimum period of time following an
educational program he received at Agriculture's expense. When he
resigned from his position prior to the expiration of this period,
Agriculture sought, under the terms of the agreement it had with
complainant, to obtain repayment of the costs of his educational program.
Complainant has asserted that he was forced to leave Agriculture because
of an alleged discriminatory hostile work environment based on his race.
The gravamen of complainant's claim seems to be that the agency (OPM)
acquiesced and/or ratified Agriculture's race discrimination by approving
the payment of the alleged debt, resulting in the withdrawal of funds
from his civil service retirement account.
Upon receipt of the class complaint, the agency, pursuant to 29 C.F.R. �
1614.204, forwarded it to an EEOC Administrative Judge for consideration.
In a decision dated July 21, 2009, following notice to the parties
and opportunity to respond, the AJ dismissed the claim for untimely
EEO counselor contact, noting that the alleged discriminatory act
occurred in June 2006, but complainant did not initiate contact with
an EEO counselor until January 14, 2008. The AJ further noted that the
complaint "appear[ed] to constitute either a second attempt to litigate
[complainant's] prior EEO complaint against [the agency] or an improper
collateral attack on the agency's administration of retirement benefits
when the alleged discrimination allegedly occurred at [another agency]
in the late 1970s." AJ's Decision, p.7. The Agency's Final Order
fully implemented the AJ's Decision.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. After thorough review of the record and full consideration
of complainant's arguments, we affirm the AJ's decision, pursuant to
the authority granted him by 29 C.F.R. � 1614.204(d)(2), to dismissed
the complaint for failure to timely contact an EEO counselor within the
requisite 45 days.1 We are unpersuaded by complainant's argument that
his claim was timely raised because it involved an ongoing unlawful
practice by the agency rather than the discrete act of denying his
retirement benefits. Complainant has failed to adequately identify a
relevant ongoing policy or practice, and the record is clear that he was
well aware of the agency's retirement decision in 2006 and the reasons
for it, and believed at that time that it was a continuation of the
race discrimination he believed occurred in the 1970s at Agriculture.
Complainant has not, however, provided a persuasive explanation for why
he waited nearly two years to seek EEO counseling after he received the
2006 retirement decision.
Accordingly, the agency's Final Order dismissing the instant 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
January 29, 2010
__________________
Date
1 Because we are affirming the agency's dismissal on the basis of untimely
EEO counselor contact, it is not necessary for us to address the AJ's
additional bases for dismissal, including failure to state a claim.
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0120093312
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093312