0520140213
07-17-2014
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Request No. 0520140213
Appeal No. 0120132734
Agency No. GSA-13-R1-Q-0101
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132734 (February 11, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
In the underlying case, Complainant contacted an EEO Counselor on May 30, 2013 and subsequently filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when his supervisors and co-workers subjected him to hostile work environment harassment during his employment and forced him to retire, effective January 5, 2007.
The appellate decision affirmed the Agency's dismissal of Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the appellate decision found that Complainant's May 30, 2013 EEO Counselor contact occurred more than 45 days after the last alleged discriminatory event on January 5, 2007. In addition, the appellate decision found that Complainant did not assert that he was unaware of the 45-day time limit. Further, the appellate decision noted that the Agency provided an affidavit stating that EEO posters with the 45-day time limit were posted in Complainant's facility. Finally, the appellate decision found that Complainant failed to provide sufficient justification for extending or tolling the 45-day time limit.
In his request for reconsideration, Complainant argued that he delayed contacting an EEO Counselor because he feared reprisal from his supervisors and did not want to lose his job. In addition, Complainant asserted that he experienced many incidents of harassment during his time with the Agency. Finally, Complainant submitted documentation regarding his medical condition and job performance at the Agency.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in dismissing his complaint for untimely EEO Counselor contact. Complainant did not contact an EEO Counselor until more than six years after the effective date of his retirement. Although Complainant indicated that he feared reprisal if he pursued an EEO complaint, the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limit for contacting an EEO Counselor. See Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Def., EEOC Request No. 05930898 (Dec. 9, 1993).
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120132734 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
_7/17/14_________________
Date
2
0520140213
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140213