0120073052
10-25-2007
Daniel MacDonald, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Daniel MacDonald,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073052
Agency No. 200J-0607-2007101421
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 18, 2007, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of race (African-American)
when on November 30, 2006, complainant was not selected for the position
of Food Service Supervisor, WG-4.
In its final decision, the agency dismissed complainant's complaint for
untimely EEO Counselor contact pursuant to 29 C.F.R � 1614.105(a)(2).
On appeal, complainant maintains that he initially filed an employment
discrimination charge questionnaire with regard to the alleged
nonselection to the EEOC, Milwaukee District Office on December 26,
2006.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the alleged discriminatory event occurred on
November 30, 2006, when complainant was not selected for the position
of Food Service Supervisor, WG-4. The record also discloses that
complainant contacted EEOC's Milwaukee District Office on December 26,
2006. Complainant waited until February 9, 2007, approximately 71 days
after he knew of the selection to contact an EEO Counselor.
The Commission finds that complainant should have reasonably suspected
discrimination by, at the latest, November 30, 2006. Although complainant
contends that he contacted the EEOC Milwaukee District Office, on December
26, 2006, regarding his alleged non-selection discrimination claim, we
find that complainant has failed to provide adequate justification as to
why he did not contact an EEO Counselor. Complainant did not initiate
contact with an EEO Counselor until February 9, 2007, which is beyond
the 45-day limitation period. The record shows that complainant had
constructive notice of the time limit and location in the Department of
Veterans Affairs (and telephone number) for contacting an EEO Counselor.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact.
Accordingly, the agency's final decision dismissing complainant's
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
October 25, 2007
__________________
Date
2
0120073052
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120073052