01A23737_r
12-16-2002
Clifton Maze, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Clifton Maze v. Department of Health and Human Services
01A23737
December 16, 2002
.
Clifton Maze,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A23737
Agency No. 00-006-HCF, 02-023-CMS
DECISION
Complainant served as class agent in a class action complaint of
discrimination, identified as Agency No. 00-006-HCF. The class complaint
was forwarded to an EEOC Administrative Judge (AJ), who on September 28,
2001 refused to certify the proposed class because it lacked commonality
and typicality. On November 27, 2001, the agency adopted the AJ's
decision, and began processing the individual complaints of the class
members. Complainant never appealed the class certification issue.<1>
Thus, the instant appeal only concerns an individual complaint.
The agency processed the individual claims as a separate complaint,
Agency No. 02-023-CMS. On March 18, 2002, the agency dismissed
complainant's individual claims, from which complainant filed the
present appeal. Complainant alleged individual harm on the basis of race
(African-American) when:
At the time complainant was hired in June 1983, he was assigned to
a lower grade level than Caucasian employees with similar experience
and education;
In 1992, complainant was denied a promotion to GS-15;
In 1998, many of complainant's job duties were reassigned to a Caucasian
employee;
In 1998, complainant was not selected for a detail to the position
of Director, Office of Equal Opportunity and Civil Rights, advertised
under Vacancy Announcement OEOCR-98-001;
In 1998, complainant was treated differently than Caucasian employees
in the agency's handling of a complaint lodged against him;
In 1998, complainant received an award under the Employee Suggestion
Program that was of a lesser value than those awards received by
Caucasian employees; and
In 1999, complainant received a group award instead of an individual
award.
In its March 18, 2002 final decision, the agency dismissed claims
(1) - (6) for untimely counselor contact. Specifically, it noted
that complainant first sought EEO Counselor contact on April 27, 1999.
The agency also dismissed claims (2), (3), and (7) for raising identical
claims to those alleged in Agency Nos. 92-388-HCF, 98-027-HCF, and
00-004-HCF.
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). The time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts
that support a charge of discrimination have become apparent.
In the present case, complainant failed to contact an EEO Counselor
within 45 days of the incidents raised in claims (1) - (6). Further, the
Commission finds that complainant failed to provide adequate justification
for his failure to timely contact a Counselor. Therefore, the agency's
dismissal of claims (1) - (6) was proper.<2>
With regard to claim (7), the agency must dismiss complaints that state
the same claim pending before or decided by the agency or Commission.
See 29 C.F.R. � 1614.107(a)(1). Complainant admitted filing a prior
complaint regarding claim (7). Therefore, we find that claim (7) was
properly dismissed by the agency pursuant to � 1614.107(a)(1).
CONCLUSION
Accordingly, the agency's dismissal of the 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
December 16, 2002
__________________
Date
1Complainant filed a prior appeal, EEOC Appeal
No. 01A21193, but expressed his intent not to appeal the class complaint
issues. The Commission administratively closed EEOC Appeal No. 01A21193
as a premature appeal regarding his individual claims of discrimination.
The Commission also received appeals from other class members, but none
challenging the denial of class complaint certification.
2Since we are affirming the agency's untimely counselor contact dismissal
for claims (2) and (3), we will not address the agency's dismissal of
claims (2) and (3) for stating the same claim previously raised.