0120083761
11-06-2008
Booker T. Neal, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Booker T. Neal,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120083761
Agency No. OBD200700129
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 22, 2008, 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), age
(69), and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when he did not receive a copy of his 2004-2005
performance appraisal. Briefly, the matter was initially accepted for
investigation and complainant requested a hearing. Thereafter an EEOC
Administrative Judge (AJ) determined there was a question regarding
the timeliness of complainant's EEO counselor contact. In a decision
dated July 11, 2008, the AJ found that complainant knew as early as
August 2005 that other employees had received an award but he had
not, so he suspected discrimination at that time in that he asserts
he had not received a copy of his appraisal. In addition, complainant
requested a copy of his appraisal in June 2006 and again in July 2006,
and for a third time in October 2006. The AJ found that even using these
dates, complainant's EEO counselor contact was untimely and dismissed
the complaint. In it's FAD, the agency adopted the AJ's dismissal. The
agency's decision noted that complainant was provided with copies of his
"draft" appraisal several times in 2005. The agency explained that no
one received copies of their "official appraisals" because the approving
official retired without signing them.
The record discloses that the alleged discriminatory event occurred as
late as October 2006, but complainant did not initiate contact with an
EEO Counselor until February 8, 2007, which is beyond the forty-five
(45) day limitation period. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
November 6, 2008
__________________
Date
2
0120083761
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120083761