0120112606
09-07-2012
Daniel E. Ludden, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
Daniel E. Ludden,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120112606
Agency No. DFAS-00027-2011
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January 28, 2011, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Specialist, YA-0501-02, at the Agency's Defense Enterprise Accounting Management System Branch in Fairview Heights, Illinois. Complainant was terminated from his position as a Financial Specialist effective December 20, 2009.
On August 3, 2010, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) challenging his December 20, 2009 removal from the Agency. On November 29, 2010, the MSBP dismissed Complainant's appeal for lack of jurisdiction.
Thereafter, on December 20, 2010, Complainant contacted an EEO Counselor alleging that he was discriminated against based on age when the Agency terminated him on December 20, 2009. In a subsequent electronic mail message dated December 22, 2010, Complainant stated that he was alleging that he was subjected to discrimination based on age, race, and sex when he was terminated from the Agency on December 20, 2009.
Subsequently, Complainant filed a formal complaint dated January 21, 2010, alleging that the Agency subjected him to discrimination on the basis of age (62) when: On December 20, 2009, Complainant was removed from his reemployed annuitant position, YA-0501-02, Financial Specialist.
The Agency issued a final decision dated January 28, 2011, dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted Complainant did not contact the Agency's EEO Office until December 20, 2010, approximately one year after her termination. The Agency noted that Complainant received No Fear Act Training on December 4, 2008, which it stated covered timeliness rules and points of contact for initiating EEO contact.
In its final decision, the Agency also noted that Complainant filed his MSPB Appeal on August 3, 2010. The Agency noted that in its Initial Decision dismissing Complainant's MSBP Appeal for lack of jurisdiction, the MSPB stated that Complainant did not raise any issue of discrimination based on his race, color, creed, national origin, disability, or age. Thus, the Agency argued that it could not consider Complainant's MSPB Appeal to be his initial EEO contact since he did not allege any acts of discrimination based on a protected basis at the time he filed his appeal to the MSPB.
On appeal, Complainant claims that he was prevented from contacting an EEO Counselor due to "trickery" by Agency management. Specifically, Complainant stated that when he received the termination memorandum from the Agency it stated he had no "appeal rights" since he was a reemployed annuitant, notwithstanding the NO FEAR course he acknowledged he took. Thus, Complainant claims he thought he had no rights to appeal the termination decision and that is why he made no appeal for several months. Complainant states that at a later point, the union told him he had rights and he then filed the MSPB appeal.
Additionally, Complainant disputes the Agency's statement that he did not raise discrimination in his MSPB Appeal. Complainant notes that he checked the discrimination box on the MSPB Appeal form and he states the MSPB Judge stated that his claims of discrimination were not within the MSPB's jurisdiction. Complainant notes he also raised discrimination in his supplemental affidavit filed with the MSPB in November 2010. Complainant argues that the date he filed the MSPB appeal should be used as the date of EEO Counselor contact.
ANALYSIS AND FINDINGS
If a person files a mixed case appeal with the MSPB instead of a mixed case complaint and the MSPB dismisses the appeal for jurisdictional reasons, the agency shall promptly notify the individual in writing of the right to contact an EEO counselor within 45 days of receipt of this notice and to file an EEO complaint, subject to 29 C.F.R. � 1614.107. 29 C.F.R. �1614.302(b). The date on which the person filed his or her appeal with MSPB shall be deemed to be the date of initial contact with the counselor. Id. An agency may dismiss a mixed case complaint for the reasons contained in, and under the conditions prescribed in 29 C.F.R. � 1614.107. 29 C.F.R. � 1614.302(c).
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
The record discloses that the alleged discriminatory event occurred on December 20, 2009, the effective date of Complainant's termination. The record reveals that Complainant did not initiate contact with an EEO Counselor until at the earliest August 3, 2010, (the date Complainant filed his MSPB Appeal) which is beyond the forty-five 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. Specifically, we note that Complainant acknowledged receiving NO FEAR Act training and did not dispute the Agency's contention that this training provided on December 4, 2008, covered timeliness rules and points of contact for initiating EEO contact. Moreover, with regard to a review of the termination notice provided to Complainant on December 18, 2009, we find the notice informed Complainant that the Agency's decision to terminate him was final and afforded him no appeal rights; however, the notice did not mention any change to his right to pursue the EEO process. 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.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
9/7/12
__________________
Date
2
01-2011-2606
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112606