0120100524
03-31-2011
Daniel R. Cooper, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Daniel R. Cooper,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100524
Agency No. AREUANS09AUG03750
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 30, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Club Manager with the Agency's Directorate of Family and Morale,
Welfare & Recreation facility in Ansbach Germany. He filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (African-American) and color (Black) when:
1. he did not receive his 2007 and 2008 annual performance appraisals;
2. during 2007 and 2008, he was not given a list of key objectives
directed related to his 2007 and 2008 annual performance appraisals;
3. on August 31, 2009, he was treated in a disparaging manner when he was
given a memorandum for the record in place of his 2008 annual performance
appraisal;
4. during 2008 he was placed in a dilapidated facility and forced to
operate his program in a hostile work environment;
5. during 2008 he was intimidated, harassed, and humiliated by Agency
officials;
6. during 2007 and 2008 he was treated despairingly when other employees
received their performance appraisals and he did not;
7. during 2007 and 2008 his career was injured when the Director made
false slanderous statements about him in the presence of two supervisors,
then held him responsible for the condition of a facility with problems
that were out of his control; and
8. during 2007 and 2008 he did not receive paid over-time for hours
worked.
In September 2008, Complainant left the position related to the above
claims, and began working at an Agency dining facility.
The Agency dismissed the complaint for failure to timely initiate EEO
counseling. It reasoned that Complainant initiated EEO contact on August
31, 2009, beyond the 45 calendar day time limit.
CONTENTIONS ON APPEAL
Complainant makes no argument. In opposition to the appeal, the Agency
argues that only claim 3 occurred within the 45 calendar day time limit,
and it really concerned Complainant not getting a 2008 annual performance
appraisal.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2).
We agree with the Agency's argument that claim 3 actually concerns
Complainant not getting the 2008 annual appraisal, which occurred in
2008. Since the alleged discrimination occurred in 2007 and 2008, and
Complainant did not initiate contact with an EEO counselor on August 31,
2009, the Agency properly dismissed Complainant's complaint for failure
to timely initiate EEO counseling.
The Agency's final decision 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
March 31, 2011
__________________
Date
2
0120100524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100524