01A10494_r
03-26-2001
Charles S. McGill, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Charles S. McGill v. Department of Veterans Affairs
01A10494
March 26, 2001
.
Charles S. McGill,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10494
Agency No. 200J-699
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) & (2), for
untimely EEO contact and for failure to state a claim. Complainant filed
an EEO complaint alleging that he was discriminated against based on
age and disability when:
( 1) On December 23, 1999, the agency
did not recommend him for the Voluntary
Separation Incentive Payment Program.
(2) As of February 29, 2000, management
had not recruited for the position of
the Supervisory
Veterans Benefits Counselor, GM-13 after stating
to complainant that the
Voluntary Separation Incentive Payment Program could
not be offered because
the position in question was not considered excess.
The record discloses that the alleged discriminatory event in claim (1)
occurred on December 23, 1999, but that complainant did not initiate
contact with an EEO Counselor on claim (1) until March 15, 2000,
which is beyond the forty-five (45) day limitation period. On appeal,
no persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Accordingly,
the Commission finds that the agency properly dismissed claim (1) and
the agency decision to dismiss this claim is AFFIRMED.
After a review of the record the Commission also finds that the agency's
decision to dismiss claim (2) for failure to state a claim on the
grounds that complainant did not suffer a job related injury due to
the agency's failure to fill the position was proper. Accordingly,
the agency's decision dismissing claim (2) is AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint for the
reasons stated herein, we find it unnecessary to address the agency's
decision to dismiss the claims on alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 26, 2001
__________________
Date