01a52004
04-22-2005
Charlie Richardson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Charlie Richardson v. Department of the Navy
01A52004
04-22-05
.
Charlie Richardson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A52004
Agency No. 05-00167-00205
DECISION
Charlie Richardson (complainant) filed an appeal from the December 3,
2004, final decision of the Department of the Navy (agency) dismissing
the above-referenced complaint. Complainant claimed a violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
Complainant contacted an EEO counselor on October 21, 2004, and filed
his formal complaint on November 19, 2004. In his complaint, complainant
claimed discrimination based on race (black), sex, age (DOB 7/12/1955),
and in reprisal for prior EEO activity at his previous employing
agency with regard to six events from June 4 to September 22, 2004.
In its final decision, the agency dismissed the first five issues
(#1-#5) for untimely EEO counselor contact and the final issue (#6)
for failure to state a claim. On appeal, complainant claimed that his
six issues constituted a continuing violation. The agency disputed that
complainant stated a continuing violation.
The Commission's regulations require that a complainant bring
his/her complaint to the attention of an EEO counselor within 45
days of an alleged discriminatory event or the effective date of an
alleged discriminatory personnel action. 29 C.F.R. � 1614.105(a)(2).
The record shows that issues #1-#5 occurred more than 45 days prior
to his EEO contact, and complainant did not offer any explanation or
justification for the delay. The agency dismissed issue #6 for failure
to state a claim, that is, for failure to present a harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. 29 C.F.R. � 1614.107(a)(1). We agree with the agency that
issues #1-#5 are properly dismissed for untimely EEO contact and that
issue #6 fails to state a claim. Because #6, the only allegation within
the 45-day period, is properly dismissed, it cannot serve as the basis of
a continuing violation claim.<1> See National Passenger Corp. v. Morgan,
536 U.S. 101 (2002).
After a review of the record, including statements and arguments not
addressed herein, based on the reasons above, we find that the agency
properly dismissed the complaint.
CONCLUSION
Accordingly, the agency's decision was proper and 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
___04-22-05_______________
Date
1In a hostile environment claim, the entire claim may be actionable as
long as at least one incident that is part of the claim occurred within
the filing period. See National Passenger Corp. v. Morgan, 536 U.S. 101
(2002).